87 A.D. 430 | N.Y. App. Div. | 1903
This action was brought for the partition of certain real property in the city of Hew York. Jacob Rothschild, the respondent herein, purchased the property at the partition sale duly held on the 27th day of May, 1902. He subsequently attempted to be relieved from his bid and made a motion for that purpose at Special Term. This motion was denied and he was directed to complete his purchase. Rothschild then appealed to this court, and this court reversed the order (77 App. Div. 267). An appeal was then taken to the Court of Appeals, where the judgment of the Appellate Division was reversed (175 N.Y. 181). An order was thereupon made, upon the coming down of the remittitur of the Court of Appeals, that the judgment of the Court of Appeals be made the judgment of the Supreme Court, and fixing June 22, 1903, as the day for Rothschild to take title, and a judgment was duly entered pursuant to the directions of said order. Thereafter Rothschild failed to obey the order and judgment and made a motion to vacate the final judgment in partition. The Special Term denied this motion, and Rothschild has appealed therefrom to this court, which appeal has not yet been determined. After the failure of Rothschild to obey the order of the Supreme Court, directing him to take title on June 22, 1903, and after the denial of his motion to have the final judgment in partition vacated, the plaintiffs made a motion to compel him to take title on or before a certain date, or in the event of his failure so to do that the referee resell the property and that Rothschild be held for any deficiency arising upon the resale. The Special Term granted this motion and directed that unless Rothschild complete the purchase on or before October 1, 1903, the referee should resell the premises according to the provisions of the original terms of sale at any time after the 15th day of October, 1903. This order contained another clause, directing Rothschild to take title and to “ accept a deed from Robert Grier Monroe, Esq., the referee to sell herein, as of the date named in the judgment herein, to wit, the 22d day of June, 1903.” From this latter part of the order above set forth these appeals are taken. The appellants contend that Rothschild should be compelled to take title as of August 11, 1902, the day upon which he would have taken title in accordance with the terms of sale.
L.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs, and the plaintiffs have leave to apply at Special Term to fix a day, under the judgment, when the purchaser shall complete his purchase, which order shall recite that on the date named he complete the purchase as of the day when his contract and the judgment of the Court of Appeals required him to complete.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollárs costs, with leave to plaintiff to apply at Special Term to fix a day under the judgment when the purchaser shall complete purchase, which order shall recite that on the day named he complete the purchase as of the date when his contract and the judgment of the Court of Appeals required him to complete.