Lohmann v. Manneck

248 A.D. 742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

Order vacating, on reargument, a deficiency judgment theretofore entered in favor of the plaintiff and against the defendant in the sum of $1,315.76 reversed on the law and the facts, with ten dollars costs and disbursements, motion denied, with ten dollars costs, and the deficiency judgment reinstated. Plaintiff foreclosed a mortgage on defendant’s property at Lindenhurst, Suffolk county. The amount of the judgment, including expenses of the sale, was $7,465.76. Plaintiff moved to enter judgment for this deficiency pursuant to section 1083-a of the Civil Practice Act, and the matter was sent to an official referee to take proof of the value of the property “ on the day of sale, or the consummation thereof, or such earlier day upon which there was a market value ” and to report. Plaintiff’s proof was to the effect that the fair market value was $6,150, which would leave an apparent deficiency of $1,315.76. Defendant’s testimony was to the effect that the reasonable market value in the years 1928 and 1929 was $8,110, that 1929 was a boom year, and that there was a forty per cent depreciation of the property in 1935. The learned referee found that the “ nearest market value obtaining ” of the property was $6,150. We are of opinion that 'the finding of fact by the referee was supported by the greater weight of the testimony and should not have been disturbed. (See President & Directors of Manhattan Co. v. Premier Building Corp., 247 App. Div. 297.) Lazansky, P. J., Young, Hagarty, Johnston and Adel, JJ., concur.