32 A.D.2d 588 | N.Y. App. Div. | 1969
Appeal by defendant Chimney Rock, Inc., the owner of the equity of redemption, in a mortgage foreclosure action, from an order of the Supreme Court, Hamilton 'County, which denied said defendant’s motion for an order directing the Referee to complete the sale of the premises in accordance with the high bid therefor submitted by it, the Referee having rejected that bid and struck down the property to the next highest bidder upon the failure of said defendant to pay 10% of the amount of its bid in cash or certified cheek, as required by the Referee. When the property was exposed for sale, on a Saturday afternoon in a rural hamlet, appellant’s president, Louis A. Roth, made the high .bid of $90,000, topping a bid of $81,000 by the intervenor-respondent Katz. Despite some inconsistencies in the papers, it is clear from the moving affidavit and from appellant’s brief, first, that it is this bid, and not Roth’s bid of $86,000 on the resale, that appellant seeks to have effectuated, and, second, that the bid is that of appellant and not that of Roth, individually, who is appellant’s officer and its attorney of record herein. The Referee requested payment of 10% or $9,000, in cash or certified check, as required by the terms of sale, and accepted from Roth (as the equivalent of certified checks) two checks issued by a bank in the aggregate amount of $5,000, and later a like check for $2,500, but when tendered a check in the amount of $5,000 issued by a bank to one 'Sacks and purportedly indorsed by Sacks to the order of Roth, declined to accept it although a person present at the sale said that he was the Sacks named as payee and would furnish identification and guarantee the indorsement. The Referee then reopened the bidding; Katz bid $85,000 and Roth made the high bid of $86,000. To meet the down payment, this time of $8,600, Roth tendered the cheeks previously found acceptable, aggregating $7,500, and cash of $500, requested time to travel to a nearby community to obtain the additional $600, and offered, also, to deposit the $5,000 Sacks’ cheek as security. The Referee, however, required the additional $600 to be paid within five minutes and at the end of that time struck down the premises to the intervenor-respondent. The Referee’s actions cannot be fairly appraised as other than arbitrary and unreasonable and as constituting an improvident exercise of discretion.' Had Roth been able to obtain the additional $600 after a brief journey, the terms would have been met. Had he failed, and had the bank cheek issued to Sacks been dishonored, the $8,000 that the