Opinion
January, 1935.
The defendant appeals from an order granting plaintiff's motion for deficiency judgment in a foreclosure action, and from such judgment. The affidavit proof as to value was irreconcilably conflicting. The Special Term adopted fifteen per cent as a fair rental return and capitalized this percentage without proof upon which to base this percentage of rental return. A triable issue of fact as to value was presented on which common-law proof should have been taken. ( N.Y. Life Ins. Co. v. Guttag Corp., 265 N.Y. 292.) Order and judgment reversed on the law and facts, and matter remitted to the Ulster County Special Term to proceed upon notice in accordance with this decision. Hill, P.J., Rhodes, McNamee, Bliss and Heffernan, JJ., concur.