Hoffman v. Burke

Headnote

Resale of premises in action of foreclosure under order directing a sale in parcels — notice need not state that the land will he sold in parcels — Rule 66.

Appeal from an order of the Special Term, denying a motion to vacate a sale of the mortgaged premises, made under the judgment entered herein.

The court at General Term said.: “ A resale of the mortgaged premises in separate parcels was directed by this court upon a previous appeal. Such resale followed, and it was made in separate

parcels, conformably to our direction. The defendant now insists, that the proposed sale in parcels should have been stated in the advertised notice, and, because of its omission, he again claims a resale. The objection is untenable. The notice of sale properly followed the terms of the decree. It was correct and ordinary practice to take the description therefrom. The form of the advertisement was not notice that the property would be sold in bulk. It was simply notice, as required by law, that the premises described in the judgment would be sold. But how, whether in block or in parcels, wras left for further inquiry. Such would be the natural conclusion of any person attracted, by the advertisement. He w’ould not expect to find particulars in the formal notice of sale. He would no more look there for information as to the order or manner, than as to the terms of sale. He wrould know that all such details depended either upon the special direction of the court, or upon the sound judgment of the sheriff or referee (Rule 66), and he would pursue his inquiries accordingly. Further, if in the present instance the defendant desired the manner of sale to be specified in the notice, he should have made his request in due season. Instead of doing so, he w'aited until the day before the sales and then served a notice which was plainly intended either again to delay the plaintiff, or to serve as the basis of amotion for a resale.”