
    Charles V. Paterno, Respondent, v. Robert J. Eagar, Appellant. 
    Supreme Court, Appellate Term, First Department,
    May 25, 1945.
    
      
      Robert J. Eagar and Christopher G. Coleman for appellant.
    
      David Greenberg for respondent.
   Memobandum Per Curiam.

This action is not an action to recover on the bond but seeks to obtain a deficiency judgment based upon a foreclosure action prosecuted in the State of New Jersey without personal service upon the defendant. The defendant not having been personally served in the foreclosure action, there is no right to a deficiency. (Durant v. Aendroth, 97 N. Y. 132.)

The order should be reversed, with $10 costs and disbursements, and motion granted.

Shientag, J. (dissenting).

I dissent. There is a triable issue with respect to the cause of action alleged in the complaint which is one to recover on a bond. The motion for summary judgment dismissing the complaint was therefore properly denied.

McLaughlin and Becht, JJ., concur in memorandum Per Curiam; Shientag, J., dissents in memorandum.

Order reversed, etc.  