5 N.Y.S. 798 | N.Y. Sup. Ct. | 1889
Apart from the question as to whether Johnson was or was not the real purchaser, the motion to compel him to pay the difference between the price realized on the second sale and that bid on the first, must, upon the law, be denied. As stated in Goodwin v. Simonson, 74 N. Y. 136: “A purchaser at a foreclosure sale may be compelled to complete his purchase, or may be discharged and a resale ordered. The plaintiff ha.d an election either to proceed against the purchaser for a contempt, or to apply for a resale.” As the court granted a resale, the purchaser was discharged from liability to make good the deficiency arising in the last sale by the order of the court. In a case where the application to the court for an order directing a resale on the purchaser’s account and risk'is made upon notice to the purchaser, the rule would be otherwise. If plaintiff, therefore, resells without such an order made after notice to the purchaser, he is deemed to elect to waive the first sale, and to take the risk of obtaining a better price. Riggs v. Pursell, 74 N. Y. 370; Miller v. Collyer, 36 Barb. 250; Insurance Co. v. Jones, 45 How. Pr. 498. See, also, “Defaulting Purchaser,” 27 Alb. Law J. 508. In this case an application was made without notice to the purchaser, and an order directing a resale was entered, which, under the authorities cited, discharged the purchaser, except to the extent of his deposit, which was forfeited, from further liability. Motion denied. Ho costs.
