New York Life Insurance v. H. & J. Guttag Corp.

Order so far as appealed from affirmed, with twenty dollars costs and disbursements. No opinion. Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.; Martin and Untermyer, JJ., dissent and vote to reverse. Dissenting opinion by Martin, J.

The Civil Practice Act (§ 1083-a) authorizes and empowers the court to fix the fair and reasonable market value of mortgaged premises so that the right to a deficiency judgment may be determined. We believe that where there is a sharp issue as to the value and where the affidavits are at variance, the court should direct the taking of testimony so that the affiants may be examined and cross-examined in open court. In such a case the proper application of the section requires a trial of the issues to correctly determine the true value of the property. The order so far as appealed from should be reversed, without costs, and the matter remitted to the’Special Term to take proof of the value of the property. Untermyer, J., concurs.