Judson v. O'Connell — 37 N.Y. St. Rep. 581

Majority

p. 581

Junius Judson, Pl’ff, v. Mary O’Connell, Ex’rx, et al., Impl’d, App’lts, and James Fee et al., Purchasers, Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed April 16, 1891.)

Headnote

1. Foreclosure—Resale—Appeal.

An order denying motion to open a resale on foreclosure and allow the purchaser on the first sale to complete his purchase is a discretionary one, and when made by the county court is not appealable to the supreme court.

3. Same.

The referee on a sale in foreclosure correctly stated the amount due on an incumbrance upon the premises, but the purchaser ascertaining that the incumbrance apparently was for a greater sum, refused to complete, and the premises were on the same day sold for a less sum, and the purchasers on the resale completed the purchase and received the deed and the report was subsequently confirmed. Held, that it appearing that there were numerous bidders at the resale, and there being no irregularity claimed, a denial of a motion to open the latter sale and allow the first purchaser to complete was properly denied.

Appeal from an order of the Monroe county court denying a re-sale of premises sold upon a mortgage foreclosure.

W. Martin Jones, for app’lts; James M. E. O'Grady, for resp’ts.

In 1887, an action was commenced in the Monroe county court to foreclose a mortgage covering premises in the city of Rochester. Such proceedings were had that in November, 1887, judgment was obtained, and the mortgaged premises were directed to be sold by Greorge H. Humphrey as referee. He advertised the premises for sale, and on the 27th day of December, 1889, they were sold and bid off by one Samuel D. Purdy for $4,000, subject to a mortgage upon which there was unpaid $2,400, and also subject to taxes.

It was discovered by the purchaser immediately after his bid that there was a mortgage of $8,000 on the premises undischarged of record. He declined to consummate the sale for want of time to ascertain the status of that mortgage, and the referee sold on the same day for $2,650. The purchasers on the re-sale paid the amount bid to the referee and received a deed of the. premises,

p. 582

and the next day paid the taxes and the amount due upon the prior mortgage. It appeared there was in fact only due upon the mortgage the amount stated by the referee at the sale, On the 31st day of December, 1889, an order to show cause why the sale •should not be set aside and Purdy allowed to perfect his bid was granted by the county judge of Monroe county. Such proceedings were had that on the 6th day of January, 1890, a referee was appointed to take proofs upon certain conditions specified in the order, which were not complied with. A hearing was had before the county court without the report of a referee, and the order to show cause was dismissed.

On the 20th day of January, 1890, the referee made his report of sale to the county court. On the 2d of April of the same year the county judge appointed a referee to take depositions to be used on a motion to open the sale which resulted in no adjudication, and finally in December, 1890, an order was obtained to show cause why the sale should not be vacated and Purdy permitted to complete his purchase. On the 24th day of December, the motion was denied. From that order, including its incidents, the appellants appealed to this court.

The order was discretionary, and, having been made by a county court, was not appealable to this court. Kingsland et al. v. Bartlett et al., 28 Barb., 480 ; White v. Coulter, 1 Hun, 357 ; Buffalo Savings Bank v. Newton, 23 N. Y., 160 ; Wollung v. Aiken, 6 N. Y. Supp., 331 ; 25 N. Y. State Rep., 445; Townsend v. Tolhurst, 10 N. Y. Supp., 378 ; 32 N. Y. State Rep., 21; § 1342 Code Civ. Pro.; Thomas v. Keeler, 52 Hun, 318 ; 23 N. Y. State Rep., 436 ; Myers v. Riley, 36 Hun, 20 .

An examination of the case at bar upon the merits fails to show errors on the part of the county court which would authorize a reversal. It is true that the second sale was for $1,350 less than the first purchase. But it appears that there were numerous bidders at the second sale. There is no claim of irregularity, and the county judge seems to have granted every facility to the persons claiming to be aggrieved to obtain a re-sale.

It is not shown that the referee acted improperly at the sale, or that the conditions imposed by the county court were unreasonable. The delays preceding the granting of the order appealed from were very great, and no substantial reason appears which would authorize a reversal. Aside from this the cases above cited, including the adjudications in this department, are decisive against the .appellant’s contention.

It follows that the order appealed from must be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Macomber, J., concur.