Opinion
February 26, 1973
In a consolidated action to declare the nullity of a mortgage lien, in which action the claim of defendant the Dime Savings Bank of Brooklyn to foreclose the mortgage has been ordered to continue as a counterclaim, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County, entered November 1, 1972, as (1) granted the Dime Savings Bank's motion (a) to dismiss the complaint and the causes of action therein for failure to state a cause of action and (b) for summary judgment upon its foreclosure counterclaim; (2) appointed a Referee, etc.; and (3) denied plaintiffs' cross motion for summary judgment dismissing the foreclosure counterclaim. Order affirmed insofar as appealed from, without costs. No opinion. Hopkins, Acting P.J., Gulotta, Christ and Brennan, JJ., concur; Benjamin, J., dissents and votes to modify the order so as to deny the motion of defendant the Dime Savings Bank of Brooklyn to dismiss the complaint and for summary judgment and to strike from the order the provisions as to appointment of a Referee, with the following memorandum: I believe there are questions of fact for trial.