
    Ephraim Sudarsky, Respondent, v. Woodmar Realty Co., Inc., Appellant, Impleaded with Another, Defendant.
    First Department,
    June 15, 1928.
    
      Owen E. Reilly of counsel [John R. Jones, attorney], for the appellant.
    
      Meyer Kreeger, for the respondent.
   McAvoy, J.

The orders here granted plaintiff’s motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice. The action was to foreclose a mortgage on real estate. A prior decision had been rendered whereby plaintiff was required to satisfy the mortgage and cancel the lis pendens for the sum of $24,000 less the sum of $2,400, which latter sum was then in dispute, and this sum was ordered to be paid into court pending the trial of the action. After this decision and compliance therewith, the plaintiff made a motion for summary judgment so as to obtain a direction for payment of this sum of $2,400, which had been paid into court, although there was a defense of extension of time to pay an installment on the mortgage and a claim of an agreement to reduce the whole sum by $2,400 for payment in advance of its due date. This motion was granted. Whether this extension and reduction agreement was had or not was a question of fact for a trial, and should not have been decided on conflicting affidavits. If this agreement was had, there was no default and plaintiff’s foreclosure proceedings were improperly brought, and no right to the fund would be established. The nature of the action never changed from a foreclosure suit to an action' at law for a liquidated sum of money. The answer and defendants’ affidavit in opposition set up a defense which should be heard, and the order granting the motion for summary judgment should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Dowling, P. J., Merrell, Finch and O’Malley, JJ., concur.

Orders reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  