(dissenting). In this action to foreclose a mortgage on real property, the order granting plaintiff summary judgment should be affirmed.
The answer denies the amount of debt and sets up a counterclaim for a judgment declaring the rights of the plaintiff and the defendant under an agreement whereby plaintiff’s assignor undertook to operate the premises and “ invest and expend the necessary money to maintain the premises, pay taxes, insurance and conditional sales obligations and make such arrangements with mortgagees including such payments as may be necessary to prevent foreclosure.” On this record the writing of October 25, 1957 cannot possibly be construed to make out a promise on the part of plaintiff not to foreclose its second mortgage. The said writing makes no distinction between “ conditional sales obligation” and other specified maintenance expenses, i.e., taxes, insurance and other expenses. The writing does not create an obligation to pay conditional sales obligations and towards that end to supplement the rents to the extent they are inadequate therefor. If the absolute obligation to satisfy conditional sales obligations is present, then we must conclude that a similar obligation is present in regard to taxes, insurance and other maintenance charges, which is tantamount to an agreement perpetually not to foreclose and, in addition, to satisfy the defendant’s personal obligation in respect of outstanding conditional sales affecting the premises. This extreme result, on this record, was not the intention of the parties, and in no aspect does the instrument spell out such intention. Reasonably read, the agreement was one to initially apply rents towards cost of maintenance of the mortgaged premises, inclusive of conditional sales obligations, and the surplus, if any, to plaintiff’s mortgage. Beyond that, the terms and conditions of the plaintiff’s bond and mortgage subsisted.
Botein, p. J., Breitel and Rabin, JJ., concur in Memorandum by the Court; McNally, J., dissents in opinion in which M. M. Frank, J., concurs.
Order insofar as appealed from, 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 is denied, with costs to the appellant.