69 N.Y.S. 581 | N.Y. App. Div. | 1901
Lead Opinion
By the bid which the appellant, Daniel Gaffey, made, he offered to purchase the mortgaged premises at' the price of $21,600, and, although the referee accepted that offer, it was not a contract which the court was obligated to complete or enforce. .If to the court it appeared that justice to any of the parties interested required it, the sale, even though Gaffey had paid the ten per cent required, might have been vacated and a new one ordered.
The circumstances under which Gaffey made the bid in question do not indicate any intent on his part to trifle with the court. He bid $21,600, and he swears that, in his judgment, the premises were worth more than that sum. We do not discover in the record that such statement is anywhere contradicted. Neidlinger & Sons, who, as subsequent lienors to the mortgage being foreclosed, claimed to be entitled to all the surplus the premises would produce, bid $21,500, but allowed them to be struck off to Gaffey at his bid of $100 more. The sale was had in the village of Saratoga Springs, and Gaffey resided in the city of Troy. It seems that he had not with him money sufficient to pay the ten per cent required by the terms of sale to be then paid down, but he offered to give his own check for the same or a draft upon his father for that amount. At the instance of the plaintiff’s attorney the referee refused to accept either, and demanded cash or such paper as the plaintiff’s attorney would approve.
It does not' appear that Gaffey was not pecuniarily responsible for that amount, nor that his check, if given, would not have been paid. He also asked that the sale be adjourned one day that he might procure the ten per cent, which was also denied. Upon it appearing that Gaffey was not then in a condition to pay the ten per cent the referee at once called the bidders back and again put the premises up for sale. It appears that all who were present when the premises were struck off to Gaffey were present at this second sale. Gaffey then and there offered to withdraw his bid and allow the premises to be. struck off to Neidlinger & Sons on their bid of $21,500. They, however, promptly refused, saying that they now expected to get the premises at a much lower figure than that.
The premises were thereupon put up and again sold, and struck
McLean, the attorney who bid for and was advising Gaffey, swears that he had attended many mortgage sales in that county, and that it was frequently the practice to give time to the bidder to procure the ten per cent required to be paid down; and it would seem that his client, Gaffey, had acted upon this occasion upon that theory.
The order from which this appeal is taken directs that Gaffey pay the difference between the $21,600, bid by him, and the $18,700, realized upon the second sale, being the sum of $2,900, to the referee: It is made upon the motion of Neidlinger & Sons. Evidently, it is an attempt on their part to secure such sum as surplus money arising upon the sale.
We are of the opinion that the circumstances of this case, as above detailed, do not require the court to enforce so severe a forfeiture against Gaffey for their sole benefit. It is plain that his conduct has not, in fact, worked any such injury to their interests. They refused to take the premises at their own bid of $21,500, with the avowed purpose of enforcing from Gaffey any deficiency that should arise upon the resale. They also objected to giving him a day’s time to procure the $2,160 and so secure to the mortgagor the benefit of the purchase, but now seek to procure the sum of- $2,900 from him by way .of a forfeiture for not completing such purchase. The contest is evidently between. Gaffey, representing the mortgagor, and Neidlinger & Sons, its creditor; and, as between them, there is no equity that requires the enforcement of such a penalty. This conclusion does not in the least sustain any willful attempt to bid without intending to purchase or in any manner to trifle or interfere with the orderly progress of a judicial sale. It furnishes no precedent for any such case. In our opinion this record fails to show that Gaffey was acting with any such intent On the contrary,
All concurred, except Chase, J., dissenting in a memorandum.
Dissenting Opinion
So far as appears in the record, defendant Gaffey bid on the property without having made any definite .arrangement that would justify a prudent man in assuming that he could comply with the terms of sale. The talk he had with his father was indefinite and uncertain. The talk' among the directors of the brewing company about Gaffey protecting their interests at the sale does not seem to have been backed by any plan for raising the money to make the purchase. The best that can be said of Gaffey’s position is that when he bid on the property he hoped to be able to raise money subsequent to the property being struck down to him with which to pay the amount of the bid. There was nothing done at the sale to mislead a bidder, and the appellant bid on the property with full knowledge of the terms of sale. I am unwilling to hold that such a defaulting bidder should escape entirely the consequences of his bid.
The order should be modified by striking out the ordering' part thereof and in place thereof directing that a judgment be entered against the defendant Daniel Gaffey for $2,900 in favor of the defendant which would have been entitled to receive the same if it had been paid to the referee by the bidder and was now surplus in the custody of the court, and also directing a further hearing at Special Term, on the usual notice, to determine which defendant is entitled to such judgment.
Order reversed, without costs.
