Bechstein v. Schultz — 9 N.Y. St. Rep. 815

Majority

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August C. Bechstein v. Robert D. Schultz et al.

(Supreme Court, General Term, First Department,

Filed June 18, 1887.)

Headnote

Foreclosure—Advertisement of adjournment of sale—Code Civ. pro., § 1678.

The failure to advertise the postponement of the sale of real property» pursuant to Code Civ. Pro., § 1678, is an irregularity for which the court might set aside the sale upon the seasonable application of a party to the foreclosure suit; but it does not constitute a jurisdictional defect in the proceedings which will affect the title of the purchaser.

Controversy submitted under section 1279' of the Code of Civil Procedure

Linus A. Gould, for pi’ft; Wm. L. Snyder, for deft’s,

The purpose of the plaintiff in this litigation is to enforce the specific performance of a contract for the purchase of real property. The plaintiff’s title to the premises is derived through a judgment in a foreclosure suit, and the sole objection which the defendants make to the title is that there was an omission to publish notice of an adjournment of the foreclosure sale from August 19, 1884, to September 2, 1884, until September 4, 1884, the day when the sale actually took place, on which day notice of the adjournment in question was published in the same papers as the original notice of sale.

Section 1678 of the Code of Civil Procedure provides that notice of the postponement of the sale of real property must be published in the paper or papers wherein the notice of sale was published. Ro doubt a failure to comply with this provision is an irregularity for which the court might set aside the sale upon the seasonable application of a party to the foreclosure suit; but I do not think it constitutes a jurisdictional defect in the proceedings, available to a purchaser more than two years after the confirmation of the sale, without objection by any of the parties.

In Woodhull v. Little ( 102 N. Y , 165 ; 1 N Y, State Rep 342), it was held that the omission of a referee in partition to give any notice whatever of the sale of one of the parcels of property sold was an irregularity which did not vitiate the sale of that parcel. It is true that this decision turned largely upon the express provisions of statute as to the effects which follow the confirmation of a sale in partition. The case is in point, however, as showing that a much more serious omission than that which is under consideration here was deemed to be only an irregularity and is expressly spoken of as such. The language spoken of m the court of appeals, also in the case of Abbott v. Curran ( 98 N. Y., 665 ), tends strongly to sustain the conclusion that the sale in question in this controversy was not invalidated by the failure of the referee to advertise the adjournment. A local statute required foreclosure sales in Kings county; to be made by the sheriff unless all the parties to the action.

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consented that a referee should sell. All the parties in the suit appeared and consented to a sale by a referee, except one, who was an absentee. The general term seems to have held that the consent of all the parties who appeared was a sufficient compliance with the statute. But, says the court of appeals, “if the court erred in this, the error did not render the appointment of the referee illegal, or the sale by him void. It was at most an error which could be corrected by any party to the record by application to the court or by appeal from the judgment; but a sale made under such circumstances is not invalid because made by a referee, instead of the sheriff.” The order under review was one which required the purchaser at the foreclosure sale thus conducted by the referee to complete his purchase, and the court of appeals held that there was no substantial defect in the title and that the buyer must take it.

If such a departure from a statutory requirement as the substitution of one officer to sell in place of another by whom the sale ought to have been made, does not effect the title of a purchaser, still less can it be held that his title is bad by reason merely of an omission to advertise an adjournment by which neglect nobody appears to have been injured or misled, and of which there is no complaint whatever by any of the parties to the action.

Upon the agreed case, I think judgment should be rendered in favor of the plaintiff, without costs.

Yah Brunt, P. J., and Daniels, J. concur.