Cohen v. Kaskel

—Action to foreclose a vendors’ lien on real property. Order denying defendants’ motion for summary judgment and to cancel the notice of pendency of action reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. There can be no vendors’ lien where the vendors accepted a mortgage for part of the purchase price and failed to make written reservation of any claimed remainder or independent lien. {Hallock v. Smith, 3 Barb. 267 ; Hare v. Van Deusen, 32 Barb. 92 ; Payne v. Wilson, 74 N. Y. 348 ; Maroney v. Boyle, 141 N. Y. 462 ; Blomstrom v. Dux, 175 III. 435.) In any event the title which the purchaser acquired at the judicial sale of the foreclosure of the mortgage in an action instituted by the vendors extinguished any claimed lien dependent upon parol agreement. (Civ. Prac. Act, § 1085; Rector, etc., Christ Prot. Episcopal Church v. Mack, 93 N. Y. 488 ; Wells v. Garbutt,' 132 N. Y. 430 .) Appeal from order denying motion to dismiss complaint by reason of the application of subdivision 7 of rule 107 of the Rules of Civil Practice dismissed, without costs, as academic in the light of the foregoing determination with respect to the appeal from the order denying motion for summary judgment. Nolan, P. J., Carswell, Johnston, Wenzel and MaeCrate, JJ., concur. [201 Mise. 146.]