C. D. Brown & Co. v. Darling & Co.

241 A.D. 790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1934
• Status: Published

Opinion

Judgment and order denying motion for a new trial reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Appeals from the orders denying motions to amend judgment and order and to retax costs dismissed as academic in view of the decision made upon the main appeal. Memorandum: The finding of the jury that the plaintiff failed to exercise reasonable care and judgment in making the sale is against the weight of the evidence. The sale was at public auction. Notice of the sale was given to the original seller. Publication of the notice of sale was made in a newspaper. All of these things were not legally requisite. (Pers. Prop. Law, § 141; Brown & Co., Inc., v. Darling & Co., 238 App. Div. 487.) The plaintiff was bound to make the sale without unnecessary delay, but the choice of the time and place of sale belonged to the plaintiff, provided it acted in good faith and with reasonable diligence. (O’Meara v. National Park Bank, 239 N. Y. 386; Dustan v. McAndrew, 44 id. 72.) It is established by the greater weight of evidence that whatever delay occurred was harmless to the defendant. All concur.