Watamond Realty Corporation, Respondent, v. Mamie Schwartz and Others, Defendants, and G. Goldberg & Sons, Inc., Appellant

Watamond Realty Corporation, Respondent, v. Mamie Schwartz and Others, Defendants, and G. Goldberg & Sons, Inc., Appellant. [MAJORITY] Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent that the default is opened and the judgment in favor of plaintiff against the defendant, appellant, vacated, to permit the appellant to litigate with the plaintiff the priority of its conditional sale contract over the plaintiff’s mortgage. The foreclosure sale shall remain undisturbed, and the controversy shall involve only such sums as the plaintiff has received as a result of such sale. The matter is remitted to Special Term for trial, where the parties may proceed as advised under the limitations here imposed. This disposition is made of the appeal for the reason that it is doubtful if this defendant, who had answered, was served with a notice of trial; and that in the exercise of discretion a trial on the merits should be permitted. (Allen v. Fink, 211 App. Div. 411, 415.) The other defendants, who have established the validity and superiority of their mechanics’ hens, should not be required again to litigate their claims. Lazansky, P. J., Kapper, Scudder, Tompkins and Davis, JJ., concur.