In an aetion to foreclose a chattel mortgage, defendant Suffolk Superior Diner, Inc. appeals from an order of the Supreme Court, Nassau County, dated March 12, 1965, and thereafter entered in Suffolk County, which denied its motion for summary judgment. Although plaintiff cross-moved for like and alternative relief, the order is silent with respect to the cross motion and plaintiff has not cross-appealed from the order. Order affirmed, without costs and without prejudice to a renewal by either party to the appeal of their respective motions, if so advised. While we do not pass on the merits of the respective motions, it would appear, on the record as it now stands, that the foreclosure action is maintainable, subject to a right of offset by appellant to the extent of the aggregate of the notes bearing due dates subsequent to the cessation of business. However, this is a matter for Special Term to decide upon such new motions as either party may be advised to initiate and upon such additional papers as they may submit thereon.
Beldoek, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.