Himmelman v. 540 West 146th Street, Inc. — 244 N.Y. 540

Majority

p. 540

Gertrude Himmelman, Respondent, v. 540 West 146th Street, Inc., et al., Defendants, and Capital City Surety Company, Appellant.

Headnote

Appeal — action to foreclose mortgage — deficiency judgment — appeal from order of modification dismissed on ground not a final order. Himmelman v. Capital City Surety Co., 216 App. Div. 418 , appeal dismissed.

(Argued November 29, 1926;

decided December 31, 1926.)

Appeal from an order of the Appellate^ Division of the Supreme Court in the first judicial department, entered May 17, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee in an action to foreclose a mortgage. The question was as to the validity of a deficiency judgment against defendant, appellant, which was surety upon a

p. 541

bond given to indemnify plaintiff in the event of a deficiency resulting from foreclosure.

Abraham J. Halprin for appellant.

Harold R. Medina and Ralph Honig for respondent.

Appeal dismissed, with costs, on the ground that the order appealed from is not a final order; no opinion.

Concur: Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: His cock, Ch. J.