
    Union Trust Company of Rochester, Respondent, v. Michael Vetromile, Appellant.
    Fourth Department,
    November 22, 1933.
    
      Harry A. Sessions, for the appellant.
    
      Robert S. Garson, for the respondent.
   Per Curiam.

In an action for money damages on a bond the defendant answers that the bond was accompanied by a mortgage executed simultaneously with the bond and that value of the mortgaged property less the amount of prior incumbrances and liens exceeds the amount due on the bond and demands that the value of the mortgaged property with such deductions be set off against the amount due by its terms upon the bond and that the complaint be dismissed. The answer is founded upon section 1083-b of the Civil Practice Act. No constitutional question is raised. Under these circumstances the plaintiff moves under rule 113 of the Rules of Civil Practice for summary judgment to strike out the answer and for an assessment of damages. We reach the conclusion that this is not a proper case for summary judgment. If the mortgaged property exceeds in value the amount due on the bond under section 1083-b of the Civil Practice Act, nothing whatever is due on the bond. There was a complete defense alleged in the answer. The case must proceed to trial upon this defense.

Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ., concur.

Order modified on the law by denying the motion so far as it relates to striking out the second separate and distinct defense alleged in the answer and directing an assessment of damages and also by striking out the provisions for costs, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.  