Opinion
October 19, 1942.
In a foreclosure action, defendant Helen Hueffner Smith appeals from an order and judgment (one paper) of an Official Referee fixing the amount of a deficiency judgment and allocating such amount between plaintiff and defendant Prudence Realization Corporation; while the said defendant appeals from that part of the order and judgment which apportions the deficiency between it and the plaintiff. On appeal by Helen Hueffner Smith, order and judgment affirmed, with one bill of costs to plaintiff and defendant Prudence Realization Corporation. On appeal by Prudence Realization Corporation, judgment and order, in so far as appealed from, affirmed, with costs to plaintiff. Hagarty, Carswell, Adel and Close, JJ., concur; Lazansky, P.J., dissents and votes to modify the order and judgment so as to provide that defendant Prudence Realization Corporation is entitled to the whole deficiency judgment and, as so modified, to affirm the order and judgment. In view of the value of the property as found by the Official Referee, plaintiff has, in effect, received full payment of its mortgage and charges and, therefore, based upon equitable considerations, the owner of the subordinate interest should receive the benefit of the deficiency judgment.