Aimone v. Brenner

Ackerson, S. C. C.

This motion is to strike out the answer of the defendants interposed in an action upon two bonds made by them to the plaintiff’s assignor and accompanying mortgages which have been foreclosed resulting in a deficiency, to recover which this action is brought.

The sufficiency of the answer in question depends upon the constitutionality (so far as it affects the bonds in question) of chapter 82 (Pamph. L. 1933), approved March 29th, 1933, which in effect permits the question of "fair market value” of the premises foreclosed to be raised in an action at law on the bond, for a deficiency resulting from the foreclosure sale, notwithstanding the order of the Court of Chancery confirming the sale.

Since the bonds in question were executed prior to the time when the above mentioned act took effect, this mótion is controlled by the recent decision of our Court of Errors and Appeals in the case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596, which held that the above mentioned act, in so far as it permits the question of "fair market value” of the mortgaged premises to be raised in an action on the accompanying contracts are concerned.

The plaintiff’s motion must, therefore, be granted and the defendants’ answer will be stricken out as sham in part and frivolous in part, and an order may be presented in accordance with the conclusion thus reached.