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Wollung v. Aiken

6 N.Y.S. 331 Court N.Y. Gen. Term English

Delivered by Barker, P. J.

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p. 331
Wollung v. Aiken et al.
(Supreme Court, General Term, Fifth Department.
June, 1889.)

Headnote

Appeal—Discretion oe Trial Court—Foreclosure—Resale.
An application for a resale of property sold on foreclosure is addressed to the discretion of the court, where no legal errors are pointed out, and the sale has been conducted regularly, and an order of the county court refusing such application is not reviewable in the supreme court. Code Civil Froc. N. Y. § 1342, allowing an appeal to the supreme court from an order affecting a substantial right, does not apply to orders involving discretion.
Appeal from an order of the Brie county court made in a foreclosure action originally commenced in that court. The order denied a motion made in behalf of the defendants, Aiken'and Darrowman, to set aside a sale of the premises under the judgment.
Argued before Barker, P. J„ and Dwight and Macomber, JJ.
Tracy Becker, for appellants. JS. L. Parker, for respondent.

We discover no error or irregularity on the part of the plaintiff in the proceedings subsequent to the entry of judgment. The premises were purchased by the defendant Mrs. Aiken, on her bid of $1,900, which is about one-half of their market value. She is the beneficiary named in the trust-deed referred to in the affidavits. The defendant Aiken, the husband of the purchaser, does not live and cohabit with his wife, and he intended to be present at the sale, and bid for the same their full market value, but he was misled as to the place of the sale as he states in his affidavit, and failed to be present for that reason. His statement in this respect we receive as truthful. Indeed, it is not disputed by the plaintiff or the purchaser. The circumstances of the case, as disclosed by the affidavit, are such that the county court could have with the greatest propriety and justice ordered a resale. The purchase money will no more than pay the mortgage and costs of foreclosure, and the title to the premises which was vested in the trustee is gone and the trust terminated. But as no legal error has been pointed out, and the sale ivas conducted with strict regularity, the application for a resale was addressed to the discretion of the court. The moving parties ask for relief as a matter of favor. The provisions of section 1342, allowing an appeal to be taken to this court from an order of the county court affecting a substantial right, does not include an order resting in the discretion of that court, and this court is without power to review orders made in that class of cases. This court can only reverse for error of law committed by the court below. A few of the cases sustaining this rule are cited: Thurber v. Townsend, 22 N. Y. 517 ; Reilley v. President, etc., 102 N. Y. 383 , 7 N. E. Rep. 427 ; Stebbins v. Cowles, 30 Hun, 523 ; Wavel v. Wiles, 24 N. Y. 635 ; Tanner v. Marsh, 53 Barb. 438 ; Osborn v. Nelson, 59 Barb. 379 ; Bowen v. Widner, 12 Wkly, Dig. 525 . The order should be affirmed, with $10 costs and disbursements, to be paid by the defendant Aiken. All concur.

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