Maple Holding Corp. v. Weichman-Harte Realty Corp.

Defendants claim that the plaintiff released its equity of redemption by delivering a deed to the premises. It is plaintiff’s contention, on the other hand, that the deed was in fact intended as security for the indebtedness and that, therefore, the equity of redemption survived. The complaint demands that the deed be decreed and adjudged a mortgage and canceled as being in the nature of cumulative security for the debt already secured by the prior mortgage held by the defendant corporation. It seems to me that this is a proper case for invoking subdivision 7 of rule 107 of the Rules of Civil Practice, providing that the defendant may move to dismiss the complaint by showing “ that the claim or demand set forth in the complaint has been released.” The claim or demand set forth in the complaint is based upon the proposition that plaintiff’s equity of redemption continued to exist after the conveyance as it had up to that time. If the equity of redemption was released, plaintiff’s claim falls. It may, therefore, properly be said that defendants’ position is that the claim or demand set forth in the complaint has been released. Since there is a dispute as to whether the deed was to be absolute, or *721only as further security, a referee will be appointed pursuant to rule 108 of the Rules of Civil Practice, to take proof of the facts and report to the court. Plaintiff asks that in the event the motion is not denied absolutely the issue be tried by a jury. The action, however, is one in equity and plaintiff upon the trial would have to abide by the determination of the court sitting without a jury. There is, therefore, no valid reason for directing trial of the issue by a jury rather than by a referee. The motion will be held in abeyance until the coming in of the referee’s report. Settle order.