(dissenting). I dissent and vote to direct judgment in favor of the plaintiff, as demanded in the submission.
The 1931 transaction, evidenced by the assignment in writing, in legal effect was a sale of a mortgage for $3,500. The Warners ’ obligation to refund $500 was primary and absolute. They did not undertake to pay any part of a mortgage debt upon the default of another. Nor was the relationship of guarantor created, for the reason that no principal obligation by a third party existed, the payment of which was undertaken by the Warners. Inasmuch as the Warners did not undertake to pay *455a mortgage debt, the provisions of the emergency moratorium statutes are not available to them. They were sellers of a $4,000 mortgage. The purchaser of the mortgage was willing to advance only $3,500 on the security of the real property covered by the mortgage. The remaining $500 was advanced on the security of the assigned savings bank passbooks.
Close, P. J., Cakswell and Lewis, JJ., concur in Per Curiam opinion; Adel, J., dissents and votes to direct judgment in favor of plaintiff as demanded in the submission, in memorandum in which Hagabty, -J., concurs.
Judgment directed in favor of defendant Warner for the relief demanded in the submission, without costs.