John S. Smith, Respondent, v. Augusta Hovey Mould, Appellant

John S. Smith, Respondent, v. Augusta Hovey Mould, Appellant. Judgment—form — modification. Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of Cattaraugus county on the 31st day of October, 1914. [MAJORITY — Per Curiam:] Per Curiam: We are of the opinion that the judgment should be affirmed, save in one particular. According to the opinion of the trial court (See 87 Misc. Rep. 199) the $530.75, the tender deposited with the county treasurer, was directed to be paid to the plaintiff to be applied upon the amount due upon the second mortgage. But the decision, evidently through inadvertence, directed the same tobe applied upon the first mortgage, upon which the first cause of action is based, and the judgment of course followed the decision instead of the opinion. We think the direction contained in the opinion was correct, and that the judgment should be modified accordingly. The judgment also seems to make the defendant liable for any deficiency which may arise between the amount due upon all of the mortgages and the proceeds of the sale. Of course, this provision would do no harm to the defendant if the property should sell for enough to pay the first mortgage. But if not, then under the terms of the judgment she would be liable for any deficiency which might arise upon the first mortgage. The deficiency should be limited so that in no event should the defendant be liable, besides costs, for more than the amount unpaid upon the two mortgages executed by her and covered by the second and third causes of action stated in the complaint, and as modified the judgment should be affirmed, without costs to either party. All concurred. Judgment modified in accordance with memorandum and as so modified affirmed, without costs of this appeal to either party.