Dows Estates, Inc. v. Smith

Appellate Division of the Supreme Court of New York

Dows Estates, Inc. v. Smith

265 A.D. 831, 37 N.Y.S.2d 846, 1942 N.Y. App. Div. LEXIS 6013

Appellate Division of the Supreme Court of the State of New York·Decided October 19, 1942·Published

Opinion

Hagarty, Carswell, Adel and Close, JJ., concur; Lazansky, P. J., dissents and votes to modify the order and judgment so as to provide that defendant Prudence Realization Corporation is entitled to the whole deficiency judgment and, as so modified, to affirm the order and judgment. In view of the value of the property as found by the Official Referee, plaintiff has, in effect, received full payment of its mortgage and charges and, therefore, based upon equitable considerations, the owner of the subordinate interest should receive the benefit of the deficiency judgment.

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Hagarty, Carswell, Adel and Close, JJ., concur; Lazansky, P. J., dissents and votes to modify the order and judgment so as to provide that defendant Prudence Realization Corporation is entitled to the whole deficiency judgment and, as so modified, to affirm the order and judgment. In view of the value of the property as found by the Official Referee, plaintiff has, in effect, received full payment of its mortgage and charges and, therefore, based upon equitable considerations, the owner of the subordinate interest should receive the benefit of the deficiency judgment.

Dows Estates, Inc. v. Smith, 265 A.D. 831, 37 N.Y.S.2d 846, 1942 N.Y. App. Div. LEXIS 6013 (N.Y. Ct. App. 1942).

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