Vox Stade v. Le Compte — 21 N.Y. St. Rep. 240

Majority

p. 240

Frederick W. Vox Stade et al., Resp’ts, v. Sarah Le Compte, Impl’d with Lucy A. Kneeland et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Mortgage foreclosure—Decree of sale—Discretion of the court— Order denying motion for re-sale not appealable.

It is discretionary with the court making a decree for the sale of real estate in foreclosure proceedings to set aside or confirm such sale, and an order denying the motion for a resale is not appealable, unless it shall, appear that there was an abuse of such discretion,

2. When motion for resale will not be granted.

Where a motion is made to set aside such a sale on the ground of inadequacy of price, the proof should clearly establish the fact. And such motion will not necessarily be granted, even upon proof that the appellant had notified intended bidders that the sale would not take place at the time-advertised, who were thereby kept away from the sale, the appellant being apparently justified in so doing by the fact that she had obtained an order for the stay of proceedings, which, however, was vacated before the.' sale.

3. Practice.

Only the affidavits recited in the order to show cause, or in the order entered in the appeal papers, are properly to be put in the appeal book; other affidavits do not belong there.

Appeal from special term order denying a motion by the defendant Le Compte for a resale of premises sold in foreclosure.

Edward M. Lee, for app’lts; Edward Goldschmidt, for resp’ts.

The application to the special term to> order a resale of 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 attained 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-

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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 anyone 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 or 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.

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, Ch. J., concurs.