Gaimari v. Horch

This appeal brings up for review an order granting plaintiff’s motion for summary judgment and also the judgment as entered thereon.

The defendants in an affirmative defense have pleaded their right to “ set off the fair and reasonable market value of the mortgaged property.” This form of pleading is sanctioned by section 1083-b of the Civil Practice Act. Their right to interpose this defense cannot be questioned. (Klinke v. Samuels, 264 N. Y. 144.) It may be, for aught we know, that the fair and reasonable market value of the property exceeds the total amount of the indebtedness.

Since the trust mortgage together with a copy of the pleadings and the judgment entered in the foreclosure action have not been made a part of this record, it is well nigh impossible to determine exactly on this appeal what rights, if any, the plaintiff has lost.

*538Consequently, as there are questions of fact to be determined, it follows that the order and judgment entered thereon should be reversed, with costs, and the motion denied, with ten dollars costs.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Judgment and order unanimously reversed, with costs, and the motion denied, with ten dollars costs.