Fay v. Fay — 76 N.Y. Sup. Ct. 149

Majority

p. 149

John G. Fay and Another, Respondents, v. William G. Fay and Others, Appellants.

Headnote

Vacation of a sale inpm'tition — motion for judgment.

When a sale in partition has been properly set aside, the denial of a motion to vacate and overrule exceptions to the referee’s report of such sale and for judgment of confirmation, must, of necessity, be upheld.

Appeal by the defendants, William Gr. Fay and others, from an order of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of Westchester county on the 21st day of December, 1892, denying the defendants’ motion to overrule exceptions to a referee’s report of a resale in partition and for judgment confirming the resale.

Herman Vogel, for the appellants.

John, MaKnone, for the respondents.

The conclusion reached upon the appeal from the order granting a resale, renders unnecessary any examination in the case. The denial of the motion to vacate and overrule the exceptions to the referee’s second sale and &*• judgment upon such resale, must of necessity, be upheld, if the sale itself was irregular and unfair. It appeared in the other appeal that the referee either refused to receive a bill from one of the owners or refused to allow the money in his hands as referee, belonging to John G. Fay, to be applied upon the ten per cent cash payment required by the terms of the resale. It was just and fair to order a third sale so that the parties might bid on equal terms.

p. 150

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred; Dykman, J., not sitting.

Order affirmed, with ten dollars costs besides disbursements.