This is a motion by plaintiff for summary judgment under Rule 113 of the Rules of Civil Practice. This action is brought pursuant to section 500 of the Real Property Law to have a mortgage cancelled of record on the ground that it is outlawed by the statute of limitations (Section 47-a, Civil Practice Act).
The answer consists of general denials and two affirmative defenses, namely, (1) that the mortgagors on September 17, 1949 acknowledged the mortgage and the indebtedness in writing, thereby extending the statute of limitations, and (2) upon information and belief, that sometime after September 17, 1949 and prior to the expiration of the statute of limitations, the mortgagors absented themselves from the jurisdiction of this court in that they or either of them were then and still are residing in Italy.
On February 8, 1929, Mr. A.C. and Mrs. L.C., his wife, executed and delivered to one Mr. P.K. a mortgage in the sum of $2,750, covering premises owned by them as tenants by the entirety, with interest at 6 per cent. payable quarterly until February 8, 1932, when the balance of the principal sum became due and payable. On the same day this mortgage was assigned to Ms. K.D. Said assignee died testate on August 13, 1940 a resident of Kings County; and his will was admitted to probate on January 22, 1941, and the defendant herein duly qualified as executor thereunder and is still acting in that capacity.
In August, 1941 the defendant filed transfer tax schedules in the Surrogate’s Court and in schedule C thereof, among other things, made reference to the aforementioned mortgage and stated that ‘according to the decedent’s records no interest has been paid on this mortgage for a number of years and the same has been apparently abandoned, the decedent realizing that there was not sufficient equity over the first mortgage for him to foreclose. The fair and reasonable value of this mortgage is none.
Mr. A.C. and Mrs. L.C. by deed dated September 17, 1949, conveyed the mortgaged premises to Mrs. L.C. individually, said deed containing the recital ‘Subject to all liens and encumbrances of record, if any.’ Defendant does not claim that he received any interest or principal since he qualified as executor in January, 1941; and thus it would appear that the mortgage was outlawed at the time the aforementioned deed was delivered in 1949.
The defendant, however, contends that the recital in the deed quoted above revived the mortgage in question and extended the statute of limitations, particularly since the conveyance was made by the original mortgagors: Such recital, absent other circumstances which amount to an admission of the validity and lien of the outstanding encumbrances, is insufficient to extend the period of limitation.
Nor does it constitute a written acknowledgment or promise under which the mortgagors intended to again become personally liable on the debt pursuant to section 59 of the Civil Practice Act. It appearing, in view of the foregoing, that the mortgage is outlawed, it is unnecessary to consider the second defense herein. On the pleadings and proofs submitted the defendant has failed to raise a triable issue herein and the plaintiffs’ motion is accordingly granted.
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