Opinion
April 13, 1942.
Action to foreclose transfer of tax lien certificates. Order striking out the appellant's answer and granting summary judgment against it reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. The appellant raised an issue of fact as to the performance of a condition precedent that admittedly had to be performed by the plaintiff before the right to foreclose its tax lien accrued. Although the appellant was the owner of a tax lien subordinate to that of the plaintiff, it is entitled to have the plaintiff establish all the controverted issues of fact, so that when a sale is held a marketable title can be delivered. (Rules Civ. Prac. rule 113; Curry v. Mackenzie, 239 N.Y. 267.) Order denying appellant's motion to serve an amended answer affirmed, without costs. No opinion. Lazansky, P.J., Hagarty, Johnston, Adel and Close, JJ., concur.