Appeal from an order of the Supreme Court at Special Term, entered December 16, 1958, in New York County, which granted a motion by plaintiff for summary judgment striking out appellant’s answer and designating a Referee to hear and report as to the amount of damages.
Memorandum by the Court. The order insofar as appealed from, should be reversed on the law, and the plaintiff’s motion for summary judgment on the first and second causes of action and for the appointment of a Referee denied, with costs to the appellant.
The answering affidavits present issues of fact that must be tried and in the circumstances summary judgment should not have been granted. The plaintiff, having acquired the mortgages sought to be foreclosed by assignment, takes subject to any defenses that may be properly asserted against its assignor. The defendant urges that an agreement was entered into between the defendant and the plaintiff’s assignor, whereby the plaintiff’s assignor in consideration of the defendant allowing him to take control and manage the properties agreed to “invest and expend the necessary money to'maintain the premises * 6 * as may be necessary to prevent foreclosure”. The plaintiff denies such arrangement but asserts that in taking possession of the properties as mortgagee its assignor merely agreed to apply the net income towards the outstanding obligations and that he made no agreement to invest any of his own funds for that purpose. We cannot determine from an examination of the document which authorized the plaintiff’s assignor to take possession and under which he did take possession which version is the correct one. *666The document is ambiguous and testimony should be taken to determine the intention of the parties. Until the intention of the parties has been determined their respective obligations cannot be fixed.
Moreover, the answering affidavits raise a question as to whether the mortgages sought to be foreclosed are actually in default. The pleadings do not properly raise that issue, but it is the affidavits that govern in a motion for summary judgment. The plaintiff does not make a clear showing of a default. The affidavits in support of the motion give no data as to the net income which might be available for payments on the mortgage. In the light of the defendant’s denial and considering that the facts with respect to such default are peculiarly within the knowledge of the plaintiff summary judgment should not be granted.