Opinion
November 20, 1944.
Present — Close, P.J., Carswell, Johnston, Lewis and Aldrich, JJ.
In an action to foreclose a mortgage, judgment dated June 16, 1942, denying appellant's application for a deficiency judgment, modified on the law and the facts, by deleting from the first ordering paragraph the words "at least the amount of plaintiff's claim of" and by fixing the value of the property at $103,463.09, the amount of the claim. As thus modified, the judgment is unanimously affirmed, with costs to respondent. The "Fifth" finding of fact is modified by striking therefrom the words "at least the amount of plaintiff's said claim of", and the "First" conclusion of law is modified by striking therefrom the words "at least the amount of plaintiff's claim of". The evidence justified the Official Referee's finding that the value of the property was at least equal to appellant's claim. Appellant was not prejudiced by the Referee's failure to fix the exact amount by which the value exceeded the claim. This court may do what the Official Referee, acting as a justice of Special Term, pursuant to a stipulation of the parties, could have done. ( Adler v. Barr, 251 App. Div. 853.)