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eBook details

• Title: Stanley Isaacson v. Kenneth Karpe Et Al.
• Author : Supreme Court of New York
• Release Date : January 19, 1981
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 64 KB

Description

Appeal from a judgment of the Supreme Court at Special Term (Pitt, J.), entered December 9, 1980 in Ulster County, which confirmed a referees report in a mortgage foreclosure action and directed sale at public auction. Plaintiff, on September 30, 1976, purchased an existing purchase-money mortgage executed June 22, 1970 by one Kenneth Karpe and his wife Robin to Rosamond B. Hoffstatter in the face amount of $25,400, with a balance owing of $16,994.86. On December 13, 1976, he commenced an action to foreclose in which defendant Kirsner appeared and answered. Kirsner is the record owner of the subject property, having gained title upon foreclosure of a junior second mortgage. Kirsners motion to dismiss the complaint alleging champerty was denied and plaintiffs cross motion to permit service of a supplemental summons and amended complaint on additional necessary parties was granted. Subsequently, Special Term, by order dated August 3, 1979, in granting plaintiffs motion for summary judgment, dismissed Kirsners amended answer (no other defendant answered or raised objections to the amended complaint), directed entry of judgment in favor of plaintiff, and appointed a referee to compute the amount due to plaintiff and to report whether the mortgaged premises could be sold in parcels. On December 9, 1980, Special Term granted judgment confirming the referees report, awarded plaintiff $34,199.51, and directed sale of the mortgaged premises at public auction. Defendant has appealed. Essentially, defendant contends that the referee erred in basing his report on plaintiffs oral testimony concerning the amount due on the mortgage without documentary proof. A referee is authorized to consider both documentary and oral evidence in computing the amount due on the mortgage (RPAPL 1321; 15 Carmody-Wait 2d, NY Prac, § 92:198, pp 105-106; see Wolcott v Weaver, 3 How Prac 159). The introduction of the bond and mortgage and of the assignment thereof into evidence establishes a prima facie case of ownership and nonpayment (15 Carmody-Wait 2d, N 1 Prac, § 92:208, p 118; see Gamble v Lewis, 88 Misc 139). The record [84 A.D.2d 868 Page 869]

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