| N.Y. App. Div. | Oct 31, 1941
In this proceeding for a deficiency judgment the official referee correctly found that the net amount due was $25,332.19, properly disregarding the amount bid at the sale which eoneededly was less than the market value as determined by the court (Civ. Prac. Act, § 1083-a) or as claimed by either party.
Both sides agreed on the value of the land. Each party called one expert to testify to the value of the building. The building was an adequate improvement in a desirable residential block accessible to transportation and occupational opportunities; it had been so extensively altered and modernized in 1928 that the then assessed valuation of the building had been increased from $7,000 to $17,500. On the date of sale the premises were in a fair condition of repair and fully rented, producing a gross rental of approximately $4,100 a year. There were no comparable sales in the neighborhood.
After a careful examination of the testimony we find an absence of probative evidence supporting the conclusions of the plaintiff’s expert and consider that the weight of the credible evidence adduced established a market value in excess of the value found by the official referee. Considering all of the relevant factors in the light of the testimony adduced in this record, we think a market value of $24,500 was established.
The order and judgment appealed from should be modified accordingly, the deficiency judgment reduced from $3,332.19 to $832.19, and the motion to confirm the referee’s report granted only to the extent of allowing a deficiency judgment in the amount of the judgment as modified, and, as so modified, affirmed, with costs to the appellant.
Martin, P. J., Townley, Glennon and Dore, J.J., concur; Callahan, J., dissents.
Judgment and order modified in accordance with the opinion, the deficiency judgment reduced from $3,332.19 to $832.19, and the motion to confirm the referee’s report granted only to the extent of allowing a deficiency judgment in the amount of the judgment as modified, and, as so modified, affirmed, with costs to the appellant. Settle order on notice.