Von Stade v. Le Compte — 4 N.Y.S. 62

Majority

p. 62

Von Stade et al. v. Le Compte et al.

(Supreme Court, General Term, First Department.

January 28, 1889.)

Headnote

Mortgages—Foreclosure—Resale—Discretion—Appealable Orders.

Where an application is made for the resale of premises sold on foreclosure on the ground that the price obtained at the sale was inadequate, and an affiant swears in behalf of the applicant that he is willing to purchase the premises at a much larger sum than they were sold for, but it does not appear that he is prepared to give any more than the amount realized, and affidavits are presented to the effect that the price realized is not much less than would have been obtained at a private sale, an order refusing the application shows no abuse of discretion, and is not appealable.

Appeal from special term, 27ew York county.

Action by Frederick W. Yon Stade and others against Sarah Le Compte and others. A decree of foreclosure was entered, and sale made, and from an order denying an application for a resale the defendant Le Compte appeals.

Argued before Yan Brunt, P. J., and Daniels and Bartlett, JJ.

Edward, M. Lee, for appellant. Edward Goldschmidt, for respondents.

The application to the special term to order a resale oí premises sold under the decree herein was based chiefly upon the claim that the price realized at the sale was inadequate, and that the appellant, knowing that a stay of proceedings had been obtained by her attorney, notified intending bidders that the sale would not take place at the time advertised, in consequence of which these bidders did not attend at that time, although in fact the stay was subsequently vacated, and the sale went on. But we are not satisfied that the price was inadequate. The premises sold for $8,350. The affidavit of an agent who has charge of three neighboring houses in the same street, and of a precisely similar character to the house which was sold, shows that the highest rent ever obtained from any of them since October, 1883, has been $700. He is familiar with the value of property in that vicinity, and expresses the opinion that houses of this character would not bring more than $8,750 at a private sale; while, if sold under foreclosure, he thinks the price would be $300 or $400 less. One George F. Wellman makes an affidavit in behalf of the appellant, in which he says he is willing to purchase the premises in suit at the sum of $9,500, and to bid said sum at the sale; but it does not appear that either he or any one else is now prepared to give any more than the premises were actually sold for, or would bid above that amount if a resale was ordered. It should be observed that two affidavits are printed in the appeal-book which do not properly belong there,—an affidavit by George •Marshall, and an affidavit by Sarah Le Compte. neither of these affidavits is recited in the order to show cause, nor in the order entered in the appeal papers. We do not think that there was any abuse of discretion in denying the motion for a resale. Hence the order is not appealable, (White v. Coulter, 1 Hun, 357 , 363,) and the appeal should be dismissed, with costs.

Daniels, J. I think the order appealable, but that a case for setting aside the sale was not presented, and therefore agree to the result.

Van Brunt, P. J., concurs.