Emsig v. Fuchs — 159 Misc. 803

Majority

p. 803

Morris Emsig, Appellant, v. Sarah Fuchs, Also Known as Sadie Fuchs, Respondent.

Supreme Court, Appellate Term, First Department,

May 12, 1936.

Jackson & Lester [Irwin D. Lester of counsel], for the appellant.

Max Fuchs, for the respondent.

An action on a bond secured by a mortgage on realty is maintainable under sections 1077-b and 1083-b of the Civil Practice Act when an action to foreclose a mortgage would be main-

p. 804

tamable. Moreover, the defendant, where the action is on a bond, must prove reasonable market value of the property by way of set-off.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Levy, Hammer and Callahan, JJ.