Ethelia Realty Co. v. Cook

259 A.D. 734, 18 N.Y.S.2d 527, 1940 N.Y. App. Div. LEXIS 6467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1940
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant George Cook, Jr., appeals (a) from the order of the official referee entered October 21, 1939, determining the fair and reasonable market value of the property to be $4,000, and fixing the deficiency at $1,279.37, and directing the entry of judgment in that amount; (b) from the judgment entered thereon; (c) from an order of the Special Term entered November 18, 1939, denying defendant’s motion to vacate the order entered October 21, 1939, and to direct the official referee to file a report; (d) from an order of the official referee entered November 24, 1939, amending the order of October 21, 1939, and changing the amount of the deficiency to $2,279.37, and directing the entry of judgment in that amount; and (e) from the amended judgment entered thereon November 24, 1939, in the sum of $2,279.37. Appeal from the order entered October 21, 1939, and the judgment entered thereon, and appeal from order entered November 18, 1939, dismissed. Amended order entered November 24, 1939, and the amended judgment entered thereon reversed on the facts, with costs, and plaintiff’s motion for a deficiency judgment denied, with ten dollars costs. The finding of the referee that the market value of the property at the time of the sale was $4,000 is against the weight of the credible evidence. We find that the market value was $7,000. Therefore, plaintiff is not entitled to a deficiency judgment. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.