O'Brien v. Empire Discount Corp.

Order insofar as it denied the motion of defendant Empire Discount Corporation for summary judgment unanimously affirmed and in all other respects order reversed, with costs, and plaintiff’s motion denied. Memorandum: The record presents triable issues of fact which should not have been summarily decided. Appellant shows in its motion papers that it purchased premises at foreclosure sale on October 5, 1962 subject to the mortgage now being foreclosed and on that date it gave notice to the then owner of such mortgage (Kleiman) of its election to pay the mortgage and take an assignment of it.…