Box v. Linnemann , 257 A.D. 849 ( 1939 )

In this foreclosure action, the appellants, owners of the property involved, appeal from the judgment of foreclosure and sale. The judgment roll discloses that the answer of the appellants, by denials of material allegations of the complaint, raises issues of fact which have not been disposed of. The granting of the motion to strike out the answer and for summary judgment pursuant to rule 113 of the Rules of Civil Practice “ to the extent of granting an order of reference * * * to hear and report the amount due for interest and taxes ” does not dispose of the issues raised by the answer. The appellants are entitled to have those issues adjudicated on the merits. Judgment of foreclosure and sale of the County Court of Nassau county reversed on the law and the matter remitted to the County Court of Nassau county for the disposition of the issues raised by the appellants’ answer, with costs to appellants to abide the event. Lazansky, P. J., Hagarty, Carswell Johnston and Taylor, JJ., concur.