47 N.Y.S. 731 | N.Y. App. Div. | 1897
A judgment of forclosure and sale of mortgaged premises consisting of .two parcels of. land, one of which was owned by. defend
Notwithstanding the fact that, the referee admits that he informed the attorney for the defendants that the sale would be adjourned and knew that the attorney relied upon the statement, the referee proceeded to and did sell the premises the next day, at the time advertised for such sale.
The attorney for defendants resided at Rochester. The sale took place at Geneseo, some twenty miles away. The attorney had no-intimation that the referee would break his faith with the attorney until about the hour of the sale, when he was informed by telephone that the referee would proceed with the sale. This information was- given, not by the referee, but by the plaintiff’s attorney, who seems to have taken the entire- management of the sale, and of’ the referee. The referee offers nothing - which can be received as an excuse for his conduct. He says that defendant Alexander Olark was present before the sale took place and “ repeatedly asked Mr. Angel to adjourn the sale, which he refused to do.” He: further states in his affidavit that just previous to his offering the premises for sale “ either Angel dr Abbott repeated the statement that they would not adjourn the sale.” This presents no excuse for the -referee. He seems to have acted upon the supposition that, the plaintiff and his attorney were empowered to conduct .the sale,, and that the power of proceeding therewith, or of adjourning the sale, was left entirely within their discretion.
A case was presented to him for the exercise of that judgment and discretion ; he recognized the reasonableness of the request and consented thereto, but failed to keep his agreement, and by reason thereof, as clearly appears from the record, the rights of the defendants were prejudiced. The court ought not to countenance such acts, but should afford ready relief upon the presentation of such a condition of affairs.
The purchaser at the sale was not a party to the action, but is a party to this proceeding, and his rights should be protected.
A referee should be appointed to take testimony as to the purchaser’s payments and expenditures, and also his receipts, income and the advantages which he has derived from the premises purchased. by him. Upon the coming in and confirmation of the referee’s report, the amounts to which the purchaser is found to be entitled should be ordered paid out of the avails of the sale prior to the payment of the first mortgage.
The order appealed from is reversed, with ten dollars costs and disbursements; the motion to reopen the sale is granted, with ten dollars costs; the sale is vacated and a reference ordered* to L. R. Doty, Esq., an attorney and counselor at law, of Geneseo, N. Y., to take testimony as to the purchaser’s payments and expenditures, and his receipts, income and advantages derived from the premises. Upon the coming in and confirmation of the referee’s report, the balance found due to the purchaser shall be paid out of the avails of the resale prior to the payment of the first mortgage.
Order reversed, with ten dollars costs and disbursements, and motion to open the sale granted, with ten dollars costs, such costs