Wollung v. Aiken — 25 N.Y. St. Rep. 445

Majority

p. 445

Michael Wollung, Resp’t, v. Jake Aiken et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed June 22, 1889.)

Headnote

1. Foreclosure—When order denying application for resale not RE VIEWABLE.

An order made by the county court denying an application for a resale of property sold on foreclosure, where no legal error is committed, and tile sale is conducted with strict regularity, is addressed to the discretion of the court, and is not reviewable in this court.

2. Appeal—What orders not appealable—Code Civ. Pro., § 1343.

The provisions of Code Civil Procedure, section 1843, 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.

Appeal from an order of the Erie 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 Borrowman to set aside a sale of the premises under the judgment.

Tracy Becker, for app’lts; E. L. Parker, for resp’t.

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 Ms 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 Ms 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 was 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.

Under the provisions of section 1342, allowing an appeal to be taken to this court from an order of the county court,

p. 446

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 id., 383; 2 N. Y. State Rep., 419; Stebbins v. Cowles, 30 Hun, 523 ; Wavel v. Wiles, 24 N. Y., 635 ; Tanner v. Marsh, 53 Barb., 438 ; Osborn v. Nelson, 59 id., 379; Bowen v. Widner, 12 Week. Dig., 525.

The order should be affirmed, with ten dollars costs and disbursements, to be paid by the defendant Aiken.

All concur.