Flint v. George — 28 N.Y. St. Rep. 629

Majority

p. 629

Helena Flint et al. v. Richard George et al.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

Foreclosure sale—Payment on bid.

One 0. bid upon a foreclosure sale, made the payment thereon and assigned his bid to O., who was to procure a loan to complete performance. O. declined to complete and on resale the property brought sufficient to satisfy the claim without such payment. O. assigned his interest in the payment, and so also did O. Held, that O. never had title to such payment and that O.’s assignee was entitled thereto.

Appeal by Louis Mendel from order directing payment by the referee of the sum of $3,070 to the North River Bank. The facts appear sufficiently in the opinion.

B. G. Oppenheim, for app’lt; W. G. Holbrook, for resp’ts.

At the sale of certain mortgaged premises in Westchester county, one Joseph Cunningham was the highest bidder. The condition of sale required a payment of ten percent, which Cunningham paid to the referee. Cunningham assigned the bid to Mr. Oppenheim, and Oppenheim stated to the referee that he could not complete the purchase. The property was again sold, and brought enough without this ten per cent, to pay the claim and costs. Cunningham after the sale assigned his interest in the ten per cent, to the North River Bank. Oppenheim assigned to one Mendel. The bank and Mendel each claim the money. Oppenheim never had any title to the ten percent. The bid was paid by Cunningham, and Oppenheim was to aid in procuring a loan to complete the purchase. The undertaking failed, and Oppenheim at no time had any right to the ten per cent. If it had been used in the completion of the purchase, an account of it must have been made to Cunningham, and the completed purchase was to be in Cunningham’s interest. The Oppenheim claim is made up of legal service, searches and interest on the proposed loan to complete the purchase, which all rest upon an averment that Cunningham failed to get the security needed to procure the loan which Oppenheim was to get.

The transaction fails to show, therefore, any title in the ten percent in Oppenheim and, of course, none in Mendel as his assignee.

The case of Proctor v. Farnam, 5 Paige, 614, was an absolute assignment of the bid, and the only question was whether- the assignee of the bid was entitled to the deed.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs.