Supreme Court, Appellate Division, Second Department, New York.

PRINGLE et al.

Feb. 25, 1946.

 Appeal from Supreme Court.

 Action by Myrtle Reese, as executrix of the last will and testament of David F.
Reese, deceased, against James Pringle and others to foreclose a mortgage,
wherein defendant filed a counterclaim.  Judgment for plaintiff, and defendant
Miller Place Corporation appeals.


West Headnotes

Mortgages  413.2
266k413.2 Most Cited Cases
    (Formerly 266k413.1, 266k413)

Moratorium statute did not entitle mortgagor, under the record after the
principal indebtedness became due and remained unpaid, to assert claim to
release of part of the mortgaged property under a release clause.  Civil
Practice Act, §  1077-a et seq.
 **162 Archie H. Brin, of New York City, for appellant.

 Dreyer & Traub, of Brooklyn (George A. Roland, of Brooklyn, of counsel, Samuel
Kirschenbaum, of Brooklyn, and Hector J. Ciotti, of Baltimore, Md., on the
brief), for respondent.

 **161 Before *828 HAGARTY, Acting P. J., and CARSWELL, JOHNSTON, ADEL, and


 In an action to foreclose a mortgage, the answer admits the substantive
allegations of the complaint and asserts as a partial defense and counterclaim
that under the terms of the mortgage agreement a part of the land should be
released from the lien thereof.  The demand for release was made after the
principal indebtedness became due and remained unpaid.

 Order striking our appellant's answer and directing judgment as prayed for in
the complaint, unanimously affirmed, with $10 costs and disbursements. Clason's
Point Land Co. v. Schwartz, 237 App.Div. 741, 262 N.Y.S. 756.  The moratorium
statutes (§  1077-a et seq., Civil Practice Act) upon this record, do not
require a holding that the terms of the release clause are enforcible by the
mortgagor after the principal indebtedness became due and remained unpaid.

60 N.Y.S.2d 161, 270 A.D. 828