The opinion
Dissenting Opinion by
Mr. Justice Cohen :
Judgment on the pleadings should be granted only in cases which are clear and free from doubt. This is not such a case. The loan commitment agreement negotiated by plaintiff was a usual one between a commercial lender and borrower when a large sum of money is involved. Among numerous other conditions and restrictions which were present here, and which are usually present between such parties, the loan commitment was also made subject to the execution and delivery of a mortgage as collateral for the loan. The note itself, upon which the $500,000 was advanced, clearly indicated that the loan was made on the note collateralized by a mortgage.
I read the commitment agreement and notes as being essentially a commercial loan transaction which, *369 although it involves mortgage security, is not the kind of “loan, secured ... by mortgage” the negotiation of which the legislature intended to restrict to licensed real estate brokers. Even a casual observer realizes that the financial world draws a distinction between “commercial banking” and “mortgage banking,” the former being handled by banking institutions like the lender in the instant case, while the bulk of the latter is handled by federal savings and loan associations and savings banks. In fact, the controller of the currency restricts the activity of commercial banks in mortgage loans.
But even if I am not correct as to the nature of the instant transaction the matter is not so clear that plaintiff, by granting judgment in the pleadings, should be denied an opportunity to demonstrate that the facts do not warrant application of the Real Estate Brokers License Act.
I dissent.
Mr. Justice Jones joins in this dissenting opinion.