City Savings Bank of Brooklyn v. Torro , 300 N.Y.S. 1009 ( 1937 )

Resettled order denying plaintiff’s motion for summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In an action to foreclose a mortgage upon real property, answers were interposed setting up, in addition to denials, two counterclaims. The first counterclaim, in effect, demands an accounting for rents derived from the mortgaged premises, which were received by the plaintiff, and the second counterclaim demands compensation for the alleged unlawful use and occupation of the said mortgaged property. Plaintiff replied to the counterclaims contained in the answers. Upon the pleadings and the affidavits of persons having personal knowledge of the facts, plaintiff moved to strike out the answers and for summary judgment. No affidavits or proof of any kind were submitted in support of the alleged defenses and counterclaims except the affidavits of the attorney for one of the parties and the guardian ad litem, neither of whom had any personal knowledge of the facts. (Curry v. Mackenzie, 239 N. Y. 267.) Consent of the administrator to the entry upon the mortgaged property and to the assignment of rents was sufficient and binding on all of the decedent’s heirs at law and next of kin. (Dec. Est. Law, § 123.) Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.