Opinion
Argued May 19, 1937
Decided July 13, 1937
Appeal from the Supreme Court, Appellate Division, Second Department.
Charles A. Kussmaul and Arnold O. Charters for appellant. Jonathan Schneider for respondents.
This is an action to foreclose a mortgage on real property. The mortgagors appeared generally but defaulted in pleading. Judgment of foreclosure and sale was regularly entered August 9, 1933, before section 1083-a of the Civil Practice Act became effective. A deficiency resulted on a sale to the mortgagee and judgment therefor was docketed. Thereafter the mortgagors moved the Special Term to vacate so much of the judgment of foreclosure and sale as directed them to pay a deficiency. The motion was granted and the deficiency judgment previously docketed was canceled upon the ground "that the value of the property exceeded the amount of the judgment." This is an appeal by the mortgagee from an affirmance by the Appellate Division of the order of the Special Term. The orders should be reversed and the motion denied. ( Loma Holding Corp. v. Cripple Bush Realty Corp., 265 N.Y. 463; Emigrant Industrial Sav. Bank v. Van Bokkelen, 269 N.Y. 110; Strochak v. Glass Paper Making Supplies Co., 239 App. Div. 312. See Kenly v. Huntington Building Association, Inc., 166 Md. 182.)
The orders should be reversed and the motion denied, with costs in all courts.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Orders reversed, etc.