King v. Daru

252 A.D. 767, 298 N.Y.S. 982, 1937 N.Y. App. Div. LEXIS 6221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1937
• Status: Published

Opinion

In an action brought for the foreclosure of a mortgage on real property, order granting plaintiff’s motion to confirm the report of an official referee as to the fair market value of the mortgaged premises on the day of the sale in foreclosure reversed on the law, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term for a new hearing there or before an official referee to be appointed. The record discloses (1) error on the part of the learned official referee in excluding from his consideration certain evidentiary elements entering into the ascertainment of the value of the mortgaged premises, which elements have been declared by authority to be competent as evidence (Heiman v. Bishop, 272 N. Y. 83; President, etc., of Manhattan Co. v. Premier Bldg. Corp., 247 App. Div. 297); and (2) further error on his part in excluding the testimony of the expert witness Edward B. Morris as to value. Although that witness “ never had sales ” in the neighborhood, he was shown otherwise to be qualified to testify. (1 Wigmore on Evidence, § 714, subds. 2, 3 and 4.) His lack of experience with actual sales in the neighborhood of the mortgaged premises had a bearing on the weight to be given to his testimony, but did not disqualify him as an expert witness on the subject of value. Carswell, Davis, Adel and Taylor, JJ., concur; Hagarty, J., dissents and votes to affirm.