Bechstein v. Schultz — 30 N.Y. St. Rep. 576

Majority

p. 576

Augustus C. Bechstein, Resp’t, v. Robert D. Schultz et al., App’lts.^[1]

(Court of Appeals, Second Division,

Filed April 15, 1890.)

Headnote

Tobeclostjbe—Omission to publish notice oe adjournment.

Notice of one of the adjournments of a foreclosure sale was not puh

p. 577

lished until the day the sale took place, when all the adjournments were properly published. The report of sale was confirmed on notice to all the parties. Meld, that the omission to publish the notice was a mere irregularity which could he waived; that the sale was not void, and as none of the parties in interest have made complaint, the objection is not available to impeach the title.

Appeal from a judgment of the general term of the, first judicial department, rendered upon a case submitted under § 1279 of the Code of Civil Procedure.

William L. Synder, for app’lts; L. A. Gould, for resp’t.

The plaintiff purchased the property, which he agreed to convey to the defendant, at a foreclosure sale.

The case states that the property was advertised by the referee to be sold on August 13, 1884; that said sale was adjourned to August 19th, and from that date to September 2d, and from that date to September 4th, when the sale took place. That the notice of postponement of the sale from August 19th to September 2d was not published until September 4th, when all the adjournments were published in the newspaper where the original notice of sale was required to be and was published. That after the sale the referee filed his report of sale, and said report was duly .served upon the respective attorneys of all the parties defendants in said foreclosure action; that no exceptions were filed to said report, and the same was by order in all things confirmed by the •supreme court, and said order of confirmation was thereafter served upon said attorneys respectively, and that said order has not been appealed from, vacated or modified.

The defect in the title is claimed to arise from the failure to publish the notice of the adjournment of the sale until after September 2d, one of the dates to which it was adjourned.

Section 1678 of the Code of Civil Procedure provides, among other things, that notice of postponement of the sale must be published in the paper or papers where the notice of sale was published.

We think the objection made is not available to the defendant.

The court had jurisdiction over the subject-matter of the controversy between the parties to the foreclosure action, and it is not claimed that the judgment in that action was not in all respects valid and regular.

The omission to publish the notice of the adjourned sale was ■an irregularity merely, which might have afforded good ground for vacating and setting aside the sale made, but one which the parties were competent to waive, and which from the subsequent proceedings we must assume they did waive.

The referee’s report of sale appears to have been duly served upon all parties to the action, and upon due notice the sale was ratified and confirmed by the court and with the order then entered no complaint has been made.

The sale was not void, and none of the parties in interest having made any complaint, the objection is not available now to impeach the title to the property.

p. 578

The judgment should be affirmed, with costs.

All concur.