The plaintiff, upon the motion papers, made out a clear, presumptive case that the transaction between the parties was a loan, though in form a sale. This was denied by the defendant, but in order that the condition of the property should not be changed by the defendant, pending the litigation, an injunction was proper. The court, at Special Term, held on February 24, 1877, granted an injunction to continue only until the 1st of May, 1877. The order gave the *362defendant a right to redeem until that time, by paying the sum advanced by plaintiff to defendant, with interest, and contained also this provision: “ But that in case the said plaintiff shall fail within that time to pay said sum and redeem said premises, then, 'and in that case, the conveyance of said premises, referred to in said complaint, shall be deemed to be an absolute deed and conveyance.” From this part of the order the defendant appeals.
Assuming that the conveyance was in fact given for a loan (and the court so determined on the motion papers), that part of the order appealed from, cannot, I think, be upheld. If the deed is held as a mortgage, then the defendant is entitled to a sale of the property in the usual way. He may not be able to pay the amount by a given day, but a public sale may call out some one who will pay the value of the premises. The value is shown by the papers to be nearly or quite double the amount advanced by plaintiff. That part of the order appealed from reversed, with ten dollars costs and disbursements to abide the event of the action.
Gilbert, J., concurred. Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not sitting.Part of order appealed from reversed, costs to abide event.