Hyperlawhypertext legal database Larkin v. Brouty 39 N.Y. St. Rep. 879

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Larkin v. Brouty

39 N.Y. St. Rep. 879 Court N.Y. Gen. Term Decision date 1891-07-02 English

Delivered by Dykman, J.

Contents

Majority

p. 879
Francis Larkin, Resp’t, v. Barbara Brouty, Def't.
(Supreme Court, General Term, Second Department,
Filed July 2, 1891.)

Headnote

Foreclosure—Resale.
Where property consisting of several lots is sold in one parcel by the
p. 880
referee, end the judgment does not direct a sale in that manner, and it appears that the property would have brought a much greater sum if sold in parcels, a resale will be ordered.
Appeal from, order denying motion for a resale of premises sold under a judgment of foreclosure.
Defendant gave to plaintiff a mortgage as security for services rendered and to be rendered to her and her son in defending them against indictments for murder. The mortgage covered two lots of land which were subdivided into fourteen parcels. The referee on the sale sold the premises in one parcel to plaintiff for $7,000, and the latter within one month mortgaged it to a savings bank for $5,000. The judgment did not direct the sale to be in one parcel. The application was made, and this appeal is taken by Sarah A. Wood, a judgment creditor of the defendant
Norman A. Lawlor, for app’lt; Francis Larkin, for resp’t.

—This is an appeal from an order denying a motion for a resale of the premises sold under the judgment of foreclosure and sale in this action.

The property was sold in one parcel, although the judgment did not direct the referee to make the sale in that way, and the affidavit satisfies us that the property should have been sold in lots as the same has been di vided. In fact we gather from the papers that the property would have produced more than double the amount of the plaintiff’s mortgage if the sale had been in lots.

After a full examination and careful consideration of all the circumstances surrounding the parties and their transactions, we think there should be a resale of the.premises.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, without costs.

Barnard, P. J and Pratt, J., concur.