Opinion
March 23, 1938.
Present — Hill, P.J., Rhodes, McNamee, Bliss and Heffernan, JJ.
Appeal by Ann B. Callan from an order appointing a referee to determine the value of the mortgaged premises and the amount of the deficiency judgment under section 1083-a of the Civil Practice Act. The appellant appeared in the action for the foreclosure of the mortgage. The final judgment determined that plaintiff was entitled to a deficiency judgment against the appellant and others, this of course being subject to the provisions of section 1083-a, and to a determination thereunder that the value of the mortgaged premises was less than the amount owing as determined in the final judgment. She took no appeal but appeared in opposition to the motion for the appointment of a referee as above mentioned and raised the issue as to her legal liability for a deficiency judgment in any amount. The opinion of the judge presiding at the Special Term indicates that he considered and decided the issue summarily. No reference to that portion of his decision is contained in the order appointing the referee. The order should be affirmed upon the ground that the legal right of plaintiff to a deficiency judgment may not be determined on a motion for the appointment of a referee to compute the amount of the deficiency judgment. Order unanimously affirmed, with ten dollars costs and disbursements, without prejudice to appropriate proceedings to raise the issue of liability.