Opinion
November 16, 1942.
Action to foreclose a mortgage on real property. The Floral Plumbing Supply Co., Inc., appeals (a) from an order of the County Court of Nassau County denying its motion for judgment on the pleadings; and (b) from an order of said court denying its motion to open its default. Order denying appellant's motion for judgment on the pleadings reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave, however, to plaintiff, upon payment of such costs, to serve an amended complaint within ten days from the entry of the order hereon. Some six months after the mortgage in suit was executed and recorded, appellant sold certain plumbing supplies to the mortgagor under a conditional sale agreement. Plaintiff, as mortgagee, seeks to apply to those plumbing supplies the after-acquired personal property clause of its mortgage. No facts are alleged in the complaint entitling plaintiff to that relief. ( Mfrs. Trust Co. v. Peck-Schwartz R. Corp., 277 N.Y. 283, 285, 286.) Appeal from order denying appellant's motion to open its default dismissed, without costs. The appeal from the order denying appellant's motion to open its default has become academic. Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.