This motion is to strike out the answer of the defendants interposed in an action upon a bond made by them to the plaintiff, and accompanying a mortgage which has been foreclosed resulting in a deficiency, to recover which this action is brought.
The sufficiency of the answer in question depends upon the constitutionality (so far as it affects the bond in question) of chapter 82 (Pamph. L. 1933), approved March 29th, 1933, which in effect permits the question of “fair market value” of the premises foreclosed to be raised in an action at law on the bond for a deficiency resulting from the foreclosure sale, notwithstanding the order of the Court of Chancery confirming such sale.
Since the bond in question was executed prior to the time when the above mentioned act took effect, this motion is controlled by the recent decision of our Court of Errors and Appeals in the case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596, which held that the above mentioned act, in so far as it permits the question of “fair market value” of the mortgaged premises to be raised in an action on the accompanying bond for a deficiency is unconstitutional so far as pre-existing contracts are concerned.
The plaintiff’s motion must, therefore, be granted and the defendant’s answer will be stricken out as sham in part and frivolous in part, and an order may be presented in accordance with the conclusion thus reached.