Larkin v. Brouty — 15 N.Y.S. 509

Majority

p. 509

Larkin v. Brouty.

(Supreme Court, General Term, Second Department.

July 2, 1891.)

Headnote

Judicial Sales—Selling in Parcels—Resale.

Where a referee sold certain lots in one parcel under a judgment which did not direct a sale in that manner, and the court is satisfied that the property would have produced a much greater sum if the sale had been in lots, the same will be set aside, and a resale ordered.

Appeal from special term, Westchester county.

Action by-Francis Larkin against Barbara Brouty. From a judgment for plaintiff, defendant appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Norman A. Lawlor, for appellant. Francis Larkin, pro se.

This is an appeal from an order denying a motion for a resale of the premises sold under the judgment of foreclosure and sale in this action. The property ivas sold in one parcel, although the judgment did not direct the referee to make the sale in that way; and the affidavit satisfies us that the property should have been sold in lots, as the same has been divided. In fact, we gather from the papers that the property would have produced more than double the amount of the plaintiff’s mortgage if the sale had been in lots. After a full examination and careful consideration of all the circumstances surrounding the parties and their transactions, we think there should be a resale of the premises. The order should be reversed, with $10 costs and disbursements, and the motion should be granted, without costs.

All concur.