Summary
In Metropolitan Savings Bank v. Tuttle (261 App. Div. 1058; order resettled, 262 id. 743) this court reversed an order denying a prior motion to dismiss this plaintiff's complaint.
Summary of this case from Metropolitan Savings Bank v. TuttleOpinion
April 10, 1941.
Appeal from Supreme Court, Bronx County.
Present — O'Malley, Townley, Glennon, Untermyer and Cohn, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint and the supplemental complaint granted, without prejudice to the institution of a new action for the foreclosure of the mortgage.
There was no default and no cause of action for the foreclosure of the mortgage when the complaint was served. That defect was not cured by a supplemental complaint alleging a default which occurred thereafter.
The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint and the supplemental complaint granted, without prejudice to the institution of a new action for the foreclosure of the mortgage.