Proc v. Hall , 7 A.D.2d 806 ( 1958 )

Appeal from an order dismissing the complaint for failure to state facts sufficient to constitute a cause of action, the action being “to compel defendants to execute a second mortgage ”. The order further provided “ that the action herein has been superceded and become academic by reason of the fact that plaintiff has instituted a foreclosure action and seeks summary judgment of foreclosure of a mortgage upon the premises to which this action relates ”, Order reversed for the same reasons set forth in the action of Proc v. Hall (7 A D 2d 806), with $10 costs to appellant. Poster, P. J., Bergan, Gibson and Herlihy, JJ., concur.