136 N.Y.S. 625 | N.Y. App. Div. | 1912
This action was brought for the partition and sale of three pieces of property, two of them situated in the borough-Manhattan and one in the borough of Brooklyn. On November 11, 1911, a judgment was entered by which, among other things, a referee was appointed to make the sale. One of the pieces of property, described as parcel No. 1, was situated oñ the northwest corner of Broadway and Spring street in the borough of Manhattan. At the sale, held February 29, 1912, said, parcel was struck down to the Esseff Realty Company for $132,000.' The judgment, in accordance with the terms of
A bid at a foreclosure sale “ when accepted so far constitutes a contract that a bidder may not withdraw his bid except under circumstances that will justify the rescission or reformation of an ordinary contract for the sale of land.” (Continental Insurance Co. v. Reeve, 135 App. Div. 737; appeal dismissed, 198 N. Y. 595.) The purchaser does not now claim a right to reform the contract. It does seek a rescission thereof. There is no suggestion of fraud in the case, but appellant urges rescission upon the ground of mistake, which, however, was not mutual. A mistake on one side only may be ground for rescinding, but not for reforming a contract. (City of New York v. Dowd Lumber Co., 140 App. Div. 358; Hearne v. Marine Ins. Co., 20 Wall. 488; Moffett, Hodgkins, etc., Co. v. Rochester, 178 U. S. 373.)
The respondents contend that if the purchaser had any right of rescission it has been lost by reason of the form of the appli
Considering, then, the application upon its merits, we think that the learned court at Special Term correctly found as á fact that there was no honest mistake as to the terms and conditions of appellant’s bid. In the affidavit verified by its president at the time that the motion was originally made he asserted that before bids were invited by the auctioneer he stated that “ the amount of the mortgage on the'property held
The order appealed from should be affirmed, with ten dollars costs and disbursements. /
Hirschberg, Thomas, Woodward and Rich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.