Lafayette National Bank of Brooklyn, as Trustee under a Declaration of Trust Dated the 22d day of October, 1936, for the Benefit of Certificate Holders of Guarantee No. 185,355 of Bond and Mortgage Guarantee Company, Respondent, v. Philip Blansky et al., Defendants, and Morris Stein, Appellant

Lafayette National Bank of Brooklyn, as Trustee under a Declaration of Trust Dated the 22d day of October, 1936, for the Benefit of Certificate Holders of Guarantee No. 185,355 of Bond and Mortgage Guarantee Company, Respondent, v. Philip Blansky et al., Defendants, and Morris Stein, Appellant. [MAJORITY] In an action to foreclose a mortgage on real property, the defendant mortgagor appeals from the order of an Official Referee, awarding a deficiencv judgment against him in the sum of $8,846.27, with interest, and from the judgment entered thereon. Order and judgment modified on the facts by (1) striking from the order the provisions thereof which determine that the fair and reasonable value of the mortgaged property, as of February 2, 1945, the date of sale, was $30,000, and which direct judgment in the sum of $8,846.27, and substituting therefor a determination that the fair and reasonable value of the mortgaged property, as of said date, was $35,000, and a direction that judgment be entered in the sum of $3,846.27, with interest from February 2, 1945; and by (2) striking from the judgment the provision thereof which awards to respondent and against appellant judgment in the sum of $8,846.27, with interest, amounting in all to $9,425.70, and substituting therefor a provision that respondent recover, as against appellant, a judgment in the sum of $3,846.27, with interest from February 2, 1945. As so modified, the order and judgment are unanimously affirmed, without costs. In our opinion, the Official Referee failed to give sufficient weight to the evidence of value afforded by the sale of the property by respondent to appellant in 1938, the mortgage accepted by respondent, as part of the purchase price, the assessed valuation of the property, and the rents collected therefrom. This evidence, considered with the other evidence adduced, is sufficient, in our opinion, to establish a value of at least $35,000, as of the date when the property was sold. Present — Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ.