Mutual Life Insurance v. Gillespie

McNally, J.

This is a motion to dismiss the first defense. Defendant, in effect, concedes that said defense is insufficient as to every cause of action other than the first. The defense is clearly insufficient as to all causes of action other than the first.

In the court’s opinion, the defense is, however, good as to the first cause of action. Section 1083-b of the Civil Practice Act is express authority in favor of such defense. That section provides that in any action “ commenced during the emergency ” any party against whom a money judgment is demanded shall be entitled to set off the fair and reasonable value of the mortgaged property less the amount owing on prior liens and incumbrances. The present action was concededly commenced during the emergency. Plaintiff contends that, nevertheless, since the emergency has now expired, the defense is insufficient. It relies upon the language of section 1 of chapter 473 of the Laws of 1947 to the effect that the continued application of the legislative restrictions upon deficiency judgments until July 1, 1947, “ is hereby declared as a matter of legislative determination ”. Plaintiff argues, in effect, that this legislative declaration terminated the application of section 1083-b of the Civil Practice Act after July 1, 1947, except as to certain owner-occupied dwellings. In the court’s opinion, this is not a proper construction of what the Legislature intended or did. Chapter 473 of the Laws of 1947 amended sections 1 and 4 of chapter 794 of the Laws of 1933, leaving intact sections 2 and 3 of chapter 794 of the Laws of 1933. Section 2 of chapter 794 of the Laws of 1933 amended the Civil Practice Act by adding sections 1083-a and 1083-b. It seems clear, therefore, that all that the Legislature intended or accomplished by the enactment of chapter 473 of the Laws of 1947 was to extend the period of the emergency referred to in.sections 1083-a and 1083-b of the Civil Practice Act until July 1,1947, without, however, repealing those sections as of July 1,1947. The Legislature did not provide that sections 1083-a and 1083-b should have no applicability after July 1, 1947. It merely extended the termination date of the term “ emergency ” as used in those sections.

The motion to strike the first defense as insufficient is denied insofar as that defense is addressed to the first cause of action, and otherwise granted.