National City Bank v. Gelfert

257 A.D. 465, 13 N.Y.S.2d 600, 1939 N.Y. App. Div. LEXIS 7784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1939
• Status: Published

Opinions

Order modified by striking therefrom all of its directory provisions and by providing in lieu thereof that plaintiff’s motion be granted to the extent of confirming the referee’s report of sale except as to deficiency and otherwise denied, and that the cross-motion of the defendant-executor be denied, and, as so modified, the order is unanimously affirmed, without costs. Judgment entered pursuant to said order vacated.

Plaintiff did not make an application for a deficiency judgment, as provided by section 1083 of the Civil .Practice Act. Said defendant’s cross-motion for an order fixing the value of the premises in order to determine the amount of deficiency, if any, was properly denied, because by it said defendant really sought a modification of the judgment of foreclosure and sale.

Lazansky, P. J., Johnston and Adel, JJ., concur; Hagarty, J., concurs in result, with opinion; Close, J., concurs with Hagarty, J.