
    Norman J. Mordkofsky et al., Appellants, v. Dime Savings Bank of Brooklyn, Respondent, and Jeffrey Lewis et al., Defendants.
   In a- consolidated action to decláre' .the. nullity-of .a mortgage, lien,-in'which action the claim of defendant the Dime-Savings Bank of Brooklyn to foreclose the-mortgage has been ordered to continue as a counterclaim, plaintiffs appeal, as limited by'their brief)-from so much of an order of the Supreme Court, Rockland .County, entered November-.1, 1972, as (1) granted the Dime Savings Bank’s motion (a) to .dismiss -the complaint and the causes of action .therein for failure to state a cause'of action ánd .(b) for summary judgment upon its-foreclosure counterclaim; (2) appointed a Referee, éte.; and. (3)-denied plaintiffs’, cross motion for summaiy judgment dismissing the ."foreclosure counterclaim. Order affirmed insofar' as appealed from, without costs,- No opinion. Hopkins, .-Acting P. J;, Gulotta, Christ-and Brennan, JJ., concur.; Benjamin, J., dissents • and votes to-modify the order so as to deny the motion.of defendant-the Dime-Savings Bank of Brooklyn.to dismiss the complaint and for summary judgment- •and to strike from the order the provisions. as to appointment of a Referee, with the following memorandum; I believe there are questions- of fact for trial.  