Elman Realty Corp. v. Booth Estates, Inc.

269 A.D. 902 | N.Y. App. Div. | 1945

— Action to foreclose a mortgage on real property. Judgment dismissing the complaint after trial by the court, without a jury, modified on the law and the facts by striking out the decretal paragraphs 1, 2, 3, 4 and 5, ánd by adding a direction that any party to the action may apply for additional or different relief at the foot of the judgment after the filing of the report of the Official Referee to whom the matter has been referred (Cohen v. Booth Estates, Inc., ante, p. 902) to hear and report on the amount, if any, that may he due on the mortgage debt. As thus modified, the judgment is unanimously affirmed, without costs. Finding of fact 20 is reversed and the matters therein found are referred to the Official Referee who was appointed to take the account in the companion action of Cohen v. Booth Estates, Inc. (supra) to hear and report. All other findings are affirmed. Conclusions of law 1, 2, 3, 4 and 5 are reversed. The finding of the court that the mortgage is fully paid and satisfied and directing its cancelation is inconsistent with its direction contained in the judgment in the companion action No. 1 (Cohen v. Booth Estates, Inc., supra) where the question of taking and stating 'the account of the plaintiff herein has been referred to an Official Referee. We believe that in the interests of justice plaintiff’s mortgage should not be canceled and discharged of record until the court has received and considered the report of such Official Referee. Present — Close, P. J., Hagarty, Johnston, Adel and Aldrich, JJ.