Majority
p. 726Fred Quenzer and Anna Quenzer, His Wife, and George Quenzer and Rosine Quenzer, His Wife, Respondents, v. The Morris-Morris Corporation and Others, Defendants; Rose Weitzman, Appellant.
Order confirming referee’s report, which computed the amount due in a foreclosure action, and directing sale of the mortgaged premises reversed on the law and the facts, without costs, and matter remitted to the Special Term to take proof upon and to determine the amount due, together with taxable costs and disbursements, in accordance with section 1077-e of the Civil Practice Act, and to provide the appellant with an opportunity to make payment. Under the statute, the appellant has an unqualified right to have the action dismissed upon making the requisite payments, and a tender thereof is sufficient to effect a stay of the sale. It is clear that the amount tendered is approximately the sum due, and any slight difference may be supplied
p. 727
in the event a determination so warrants. The facts as averred in appellant’s affidavit are undenied. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.