27 A.D. 621 | N.Y. App. Div. | 1898
On the 9th day of November, 896, certain real estate situate in the city of New York, belonging to the appellant, of the value of upwards of $3,000, was sold at public auction, under the judgment rocured by the plaintiff herein, to William . Rooney for $540. The amount due upon the judgment on the day of sale was a little over $400. After the recovery of the judgment and before the sale took place, the appellant paid to one attorney, who represented him for the purpose of having the judgment satisfied. $400, and he paid to another attorney for the same purpose the sum of $337.50. The attorneys did not use the
money as directed, and the appellant’s property was sold, and, there being no one present to protect bis interest, at a large sacrifice to him. There is nothing in the moving papers, however, to show that Rooney, in making the purchase, did not act in good faith; therefore, we are compelled to hold that the sale was a valid one, and sufficient to vest the title in him. Rooney thereafter sold to Smith for $2,850, and it is apparent from the record presented that Smith acted in good faith. To make the purchase Smith borrowed $2,500 from the Franklin Society for Home Building and Savings, and secured the payment of the same by a mortgage upon the real estate in question. The mortgagee is not made a party to this proceed-' ing, and this of itself would prevent granting to the appellant the relief asked. No one would contend that a sale of this character could he set aside, at least without making a subsequent mortgagee for value a party to the proceeding. It further appears upon the petitioner’s own statement that he knew of the sale at the time it was made, and that on the 19th of November, 1896, he was dispossessed from his property by the purchaser at the sale; yet he took no steps to assert his rights, or to secure any relief, until the 17th of September, 1897, when he made the motion below. During this time others had acquired interest in the property both by conveyance and mortgage. As to the facts with regard to the conduct of the attorneys we have not heard their explanation, if any. If those facts should not be explained they would call upon the court to take such action as the law provides with regard to the disciplining of such officers; and the district attorney is required to make an investigation and bring ine matter to the attention of the court. The order should be affirmed, with ten dollars costs and disbursements. "Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.
