Opinion
April 9, 1943.
Appeal from Supreme Court, Bronx County, KOCH, J.
Sidney S. Levine of counsel ( Levine Meckler, attorneys), for appellant.
Leon Quat of counsel ( Davis and Quat, attorneys), for respondent.
As appellant failed to show that he had a defense to the action in foreclosure, the motion for summary judgment was properly granted. We think, too, that the Special Term was warranted in denying appellant's application for a stay of the proceeding. (Federal Soldiers' and Sailors' Civil Relief Act of 1940, 54 U.S. Stat. 1178 [as amd. by Act of October 6, 1942, Public Law 732, 77th Cong., ch. 581, [2d] sess. H.R. 7164], §§ 201, 302, subds. [2] and [3]; U.S. Code, tit. 50, appendix, §§ 521, 532, subds. [2], [3].) Appellant's defaults in payment of principal, interest and taxes occurred long before his entry into the armed forces. Moreover, no personal judgment is sought against him by respondent.
Upon the record, we are satisfied that the ability of appellant to comply with the terms of the mortgage or to conduct his defense to the action is not materially affected by reason of his induction into the military service. The statute is to be liberally administered as an instrument to accomplish substantial justice in order to protect the interests of persons in the military service, but it may not be employed as a means of enabling one who has flouted his obligations in civilian life to obtain indefinite delay or to cancel his just liabilities. "While the courts will protect the men engaged in the service of the nation from loss in legal proceedings brought about by their absence in service, the papers should show that the threatened injury is due to their service and consequent inability to protect their interests, and this is the plain direction of the act of Congress." ( Dietz v. Treupel, 184 App. Div. 448, 450.)
The order should be affirmed, without costs.
MARTIN, P.J., UNTERMYER, COHN and CALLAHAN, JJ., concur; DORE, J., dissents and votes to reverse and deny plaintiff's motion for summary judgment of foreclosure and to grant the motion of defendant, Flavin, for a stay.
Order affirmed, without costs.