New York Title Insurance v. Gerdes , 249 A.D. 772 ( 1936 )

The motion is referred to the court that rendered the decision on the appeal. Present ■— Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ. Motion for reargument denied. Motion for resettlement of order denied. The decision of this court handed down on September 28, 1936 [248 App. Div. 833], is hereby amended to read as follows: In an action to foreclose a mortgage, judgment of foreclosure and sale and dismissing the appellant’s counterclaim or offset of certain mortgage certificates held by her affirmed, with costs. No opinion. Lazansky, P. J., Carswell and Taylor, JJ., concur; Young and Johnston, JJ., dissent and vote for reversal and the direction of judgment for the appellant, allowing her counterclaim as an offset to the extent of the amount due on the bond and mortgage in question and dismissing the complaint, being of opinion that the appellant is entitled, under section 420 of the Insurance Law, to offset her claim upon the mortgage certificates held by her against the amount due on the mortgage.