Holland Trust Co. v. Hogan — 44 N.Y. St. Rep. 577

Majority

p. 577

The Holland Trust Co. of New York, Trustee, Resp’t, v. Isabella V. Hogan et al., App’lts.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

I. Foreclosure—Parties.

The owner of the equity of redemption moved to open a"decree of foreclosure and compel plaintiff to bring in as defendant a former owner on the ground that it did not appear in the judgment roll whether such owner was married or not, his deed being from himself alone. It appeared that the deed from such owner declared that he was unmarried, and that he had, in actions in which the agent of the owner of redemption was a party, made affidavit to the same effect. Held-, that the objection was frivolous,, and the motion was properly denied.

2. Same—Part payment.

The agent of the owner paid plaintiff’s attorney money to procure adjournments of the' sale. The attorney claimed that the payments were-made for the purpose of paying the cost of readvertisement and produced bills therefor amounting to that sum. Held, such payments could not ba applied to the reduction of the amount due on the decree.

3. Same—Sale—Attorneys.

The attorney for the plaintiff, whose conduct is perfectly fair and honest, may bid in the premises at a foreclosure sale as against the defendants in, the action.

Appeal from, order denying motion to set aside a judgment .of foreclosure and the sale thereon.

Wm. H. Knox, for app’lts; Morris P. Ferris, for resp’t.

The order from which this appeal is taken was' properly made by the justice at special term. The motion before him was directed to the accomplishment of three things, viz, : the setting aside of a sale of mortgaged premises; the application of two certain sums, paid to the attorney of the plaintiff intermediate the first advertisement of sale and the actual sale, to the reduction of the amount due on the decree; and the opening of the; decree and compelling the plaintiff to bring in as a party defendant a man who at one time held the legal title to the mortgaged premises. '

Considering the several grounds” in the reverse order of their, present statement, it appears that the owner of the equity of redemption in the property was one Kate J. Murphy. She does not personally make any affidavit on this motion. It is based air together on two affidavits of the defendant, John Hogan, her brother-in-law, and, as he says, her agent; but it is apparent he isl really the party interested. Hogan swears that the judgment is defective, because one O’Connor, who conveyed to the defendant Murphy, was not a party to the action. O’Connor was the grantee of this same affiant, and the person through whom the title passed into the name of Hogan’s sister-in-law, and the reason why it is claimed O’Connor should be made a party is, that it does not appear in the judgment roll, whether the O’Connor was married, or has a wife living, there being no other party named as a grantor in the deed to Kate Murphy than O’Connor himself. This objection is utterly frivolous, and its presentation as a ground for

p. 578

setting aside a decree should be rebuked. It is disingenuous in the extreme. It appears in the answering affidavits, and is not -denied, that in the conveyance of this and other property from •O’Connor to the defendant Murphy, he described himself" as un.married. Hogan conveyed to him, as he states in his own affidavit. He does not swear that O’Connor was married, nor is there ¿anything to show he was. On the contrary, in various suits in the court of common pleas, to which this same Hogan was a ■j>arty, O’Connor made an affidavit that he was unmarried, and it is simply incredible that Hogan did not know it. This attempt to deceive the court is quite enough to deprive the affiant’s statements of any force at all.

On that branch of the motion which relates to the application of certain moneys to the reduction of the decree, it appeared that •the sale was first advertised for October 6, 1891. Hogan swears he first learned of the date they fixed on that morning, and then he arranged on the payment of $100 to have it postponed for a .fortnight.

That again at the expiration of that time he arranged on payment of $100 more for another postponement of two weeks, which carried the day of sale, to November 2d. That he (Hogan) miscalculated the time of sale thinking it was the 3d, and that he intended to go again to the office of the plaintiff’s attorney in quest of another and third adjournment; that he discovered on the second that the sale was advertised for that day, went to the sales rooms but arrived too late, the property having been struck -off to a purchaser. If these two amounts were paid for and ex- . acted by the attorney for the plaintiff as conditions of an adjourn■ment and nothing else, we might well exercise the discretion residing in the court to direct a re-sale, but Mr. Ferris, the attorney, swears positively that the two payments were merely to cover ithe cost of re-advertising, and in corroboration of his statement produces the bills of two newspapers for such advertisement. 'These bills of the “ Law Journal” and “ the Sun’ aggregate two hundred and eighty-five dollars, and it was not at all unreasonable that the payments made by Hogan should be required as conditions of the postponements of the sale.

The remaining ground upon which the interposition of the • court was asked to set aside the sale is that the property was bid in by the plaintiff's attorney in his own name and for his own benefit. It is claimed that for some reason the general principle "that trustees, receivers and those standing in fiduciary or confi-' ■dential relations to others, and to property in which such others are interested, can acquire no advantage to themselves from or out •of such property as purchasers, has application to this purchase. Hut Mr. Ferris stood in no fiduciary or confidential relation to Hogan or the defendant Murphy, and certainly not as to the property, for the very purpose of the suit was to sell that property ■away from'the defendants.

He owed them no direct duty and was not bound to do more than conduct the foreclosure suit honestly, lawfully and without «oppression or deceit, as an adversary proceeding. If his own.

p. 579

client were to come in and claim the benefit of the purchase a-very different question would arise, but as to the parties making-the present motion, the simple question is as to the right of am attorney for an adverse party, whose conduct is perfectly fair and honest, to bid in the premises at a foreclosure sale. That is exactly what was done in McCotter v. Jay, 30 N. Y., 80 , and in that, case the purchase was sustained.

We have examined the papers used in this'motion with care, to. ascertain if there .exists any ground on which to set aside this sale, and can find none. Both the auctioneer and referee swear that it was well and honestly conducted; that the attendance thereat was-large; that the bidding was spirited and there was much competition, no less than thirteen different bids having been recorded by the auctioneer in his book. [Nothing whatever was done by the attorney of the plaintiff at any time to mislead the defendants,, but, on the contrary, all his proceedings were fair, open and regular. The order must be affirmed, with ten dollars costs.

Yah Brunt,- P. J., and O’Brien, J., concur.