Fay v. Fay — 23 N.Y.S. 409

Majority

p. 409

(69 Hun, 149.)

FAY et al. v. FAY et al.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Appeal from special term, Westchester county.

Action for partition by John G. F$y and Katheriné C. Fay against William G. Fay, Henry A. Fay, and Elizabeth Fay. From an order denying defendants’ motion to overrule plaintiffs’ exceptions to referee’s report of resale,, and for judgment thereon, defendants appeal.

Affirmed.

Argued before BARNARD, P. J., and PRATT, J.

Herman Vogel, for appellant.

William H. Pemberton, for respondent John G. Fay.

John MeCrone, for respondent Katherine C. Fay.

The conclusion reached upon the appeal from the order granting á resale, ( 23 N. Y. Supp. 408 ,) renders unnecessary any examination in this case. The denial of the motion to vacate and overrule the exceptions to the referee’s second sale, and for judgment upon such resale, must of necessity be upheld if the sale itself was irregular and unfair. It appeared in the other appeal that the referee either refused to receive a bid from one of the owners, or refused to allow the money in his - hands as referee belonging to John G. Fay to be applied upon the 10 per cent, cash payment required by the terms of the resale.- It was just and fair to order a third sale, so that the parties might bid on equal terms.

The order should be affirmed, with $10 costs and disbursements.