Remodeling & Construction Corp. v. Melker

Action to foreclose a junior participating interest in a first mortgage. Respondents, Horowitz, Goldstein and Stein, are second mortgagees. They interposed an answer pleading two separate affirmative defenses, which in substance allege that plaintiff and a nominee of defendant owners of the property entered into a modification agreement, whereby the plaintiff’s junior interest in the first mortgage was advanced two years so that it became due prior to respondents’ second mortgage, and the interest rate and amortization payments were increased, rendering the second mortgage valueless. Respondents — second mortgagees — moved for summary judgment and plaintiff, pursuant to subdivision 8 of rule 113 of the Rules of Civil Practice, asked for the same relief. Respondents’ motion was granted, and plaintiff appeals. Order, and judgment entered thereon, affirmed, with $10 costs and disbursements. No opinion. Lewis, P. J., Hagarty, Johnston and Adel, JJ., concur; Holán, J., dissents and votes to reverse the order and judgment and to deny the motion on the ground that the record does not establish the extent to which respondents’ security has been impaired.