Foster v. Roche — 24 N.Y. St. Rep. 388

Majority

p. 388

Margaret Foster, Resp’t, v. Theodore M. Roche, Trustee, etc., Impleaded, et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Partition—Sale—Judgment—Amendment on—When party consenting TO, CANNOT COMPLAIN.

An interlocutory judgment was entered in the action directing that'the-

p. 389

proceeds of certain premises, to be sold by a referee, be paid to plaintiff and defendant. Subsequently, on September 29, 1886, an order was made directing the purchaser to pay the amount of the purchase-money into the hands of a trust company to the credit of the action, to be drawn upon two days’ notice of an application therefor to be given by the referee to respective attorneys, or by either of the parties to the other. When the premises were sold, the purchaser completed his bid by paying the money into the trust company. Subsequently, in March, 1887, the parties stipulated that the order of September twenty-nine be cancelled and set aside. The depositary was never served with a copy of the' order of September twenty-ninth. Held, that the appellant, having consented in writing at a time before the existence of the amendment to the judgment was known, that the moneys might be drawn under the judgment as it originally stood, cannot complain, if any loss ensued.

Appeal from an order of the special term denying the appellant’s motion to vacate the record of a deed executed by the referee to Charles B. Fitzpatrick, in an action of partition, and to . compel the purchaser to surrender and deliver up such deed.

George W. Gibbons (J. C. Bolton, of counsel), for app’lts; Good rich., Beady & Goodrich (John A. Beady, of counsel), for purchaser (B. & B. Mitchell, of counsel).

An interlocutory judgment was entered in this action, in the month of June, 1886, directing that the premises be sold by James Kearney, as referee, and that the proceeds of such sale, after paying incumbrances and expenses of the sale, be paid to the plaintiff, and to the defendant Roche, as trustee. Subsequently, and on the 29th day of September, 1886, on the application of the defendant Roche, the court ordered that the purchaser or purchasers at the sale of the premises pay the amount of the purchase-money into the Farmers’ Loan and Trust Company to the credit of this action to be drawn after two days notice of an application therefor to be given by the referee to the respective attorneys or by either of the parties to the other. Six days thereafter the premises were sold and a portion thereof, namely, that known as Mo. 47 Great Jones street, was bought by Charles B. Fitzpatrick. The residue of the premises was purchased by the plaintiff. In the month of March, 1887, the parties stipulated in writing that the order made on the twenty-ninth day of September preceding, requiring the moneys to be deposited in The Farmers’ Loan and Trust Company to the credit of this action to be drawn out only on notice, be cancelled and set aside.

It appears by the findings of the referee, to whom the matter was referred, that the depositary and its officers never have been served with a copy of the order requiring the moneys to be deposited and drawn out as above, and were ignorant of the same.

It appears from the facts established in the case, that the purchaser discharged the whole of his duties when he completed his bid by paying the money into the hands of the Trust Company.

In the absence of a service of a copy of the amended judg

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ment upon the trust company, and in the absence of the knowledge of its officers, of the existence of such modified judgment, "the moneys were withdrawn by the referee regularly, so far as ■either the company or the purchaser was aware. The appellant having consented in writing, at a time before the existence of the .amendment to the judgment was known, that the moneys might be drawn under the judgment as it originally stood, can not now properly be heard to complain, if any loss ensued.

■ The order appealed from should be affirmed, with costs and disbursements.

Van Brunt, Ch. J., and Bartlett, J., concur.