39 N.Y.S. 486 | N.Y. App. Div. | 1896
This action is brought to foreclose a mortgage executed by the Saratoga Gas and Electric Light Company upon its franchise and property, real, personal and mixed, whether then owned or thereafter to 'be acquired or constructed, to secure the payment of $300,000 of its bonds. The plaintiff holds the mortgage as trustee for the bondholders, and the foreclosure is asked for upon the ground that default having been made in the payment of the interest, the whole of such bonds had become due and payable. A receiver was appointed at the instance of the plaintiff to take and manage the mortgaged property during the pendency of the litigation, and such receiver had possession of the same at the time the orders
Such judgment was affirmed on appeal, to the General Term. An appeal from such affirmance has been taken to the Court of Appeals by the defendants Reynolds and the First National Bank of Saratoga Springs, and is now pending. Such appellants have executed and have had properly approved an undertaking containing the obligations required by the first clause of section 1331 of the Code, and the question presented to us by these appeals is whether such an undertaking was operative to stay the sale directed by such judgment.
We are of the opinion that the provisions of that section are not applicable to the case before us. The evident purpose of the section is to secure to the respondent, upon such appeal, indemnity against loss, by reason of being deprived'of the use of the property during the delay caused by the appeal, and by reason of any waste that may be committed thereon during that period. The section seems to assume that if such losses are made up to him, the respondent will be as fully secured as -if he was allowed to realize the full value of the property by an immediate sale thereof. (Grow v. Garlock, 29 Hun, 598; approved in Werner v. Tuch, 119 N. Y. 632.)
As to the claim that the property was sold for an inadequate price, the facts before us do not sustain it. There is no evidence as to what was the real value of the property sold. The affidavit of Reynolds, to which the appellants’ counsel refers us as evidence on that subject, was made in January, 1894, and is to the effect that the net earnings of the mortgagor are $35,000 per year. That might he true and yet the property sold by the referee not exceed in value the price obtained. What those net earnings were derived from does not appear, and evidently refer to a condition existing more than two years before the sale. And the statements of Mr. Taylor as to what the committee were willing to bid is not such evidence of value as should he required in order to vacate this sale. There is no evidence before ns that any greater sum can be procured on another sale; no statement that any one has offered more ; no direct statement whatever by any one of the actual value of the property sold; and on such facts we cannot say that the juice jirocured was an inadequate one.
The orders ajipealecl from must he affirmed, with ten dollars costs and disbursements.
All concurred, except Landon, J., not sitting, and Putnam J., not voting.
Order affirmed, with ten dollars costs and disbursements.