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Dows Estates, Inc. v. Smith

265 A.D. 831 Court N.Y. App. Div. Decision date 1942-10-19 English

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Majority

p. 831
Dows Estates, Incorporated, Respondent, v. Helen H. Smith, Appellant and Respondent; Prudence Realization Corporation, Respondent and Appellant, Impleaded with Others.

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.