Lipwal Holding Corp. v. Martens 270 A.D. 935

The motion is referred to the court that rendered the *936decision. Present — Lewis, P. J., Hagarty, Adel, Aldrich and Nolan, JJ. Motion for reargument granted. On reargument the decision of this court handed down April 22, 1946 {ante, p. 909), is amended to read as follows: In an action to foreclose a mortgage on real property and to recover damages for injuries to the building thereon, judgment reversed on the law and the facts, without costs, and the matter remitted to Special Term to enter a judgment (a) in favor of respondent on the merits, without costs, on the second cause of action, and (b) in favor of plaintiff for foreclosure and sale, upon proof, that the defendants other than respondent are in default. The evidence does not establish the cause of action for alleged impairment of the mortgage security. The mere offer to pay all arrears and costs is not the equivalent of curing the defaults, and such testimony does not require that the foreclosure complaint' be dismissed. On the evidence in this record plaintiff is entitled to judgment of foreclosure and sale as against the respondent. The record contains no proof upon which to grant judgment against the other defendants. If- they have failed to appear in the action, proof thereof should be made. Hagarty, Acting P. J., Carswell, Adel, Aldrich and Nolan, JJ., concur.