Dennerlein v. . Dennerlein

New York Court of Appeals

Dennerlein v. . Dennerlein

19 N.E. 85, 111 N.Y. 518, 20 N.Y. St. Rep. 110, 66 Sickels 518, 1888 N.Y. LEXIS 1044

CourtNew York Court of Appeals

DecidedDecember 4, 1888

StatusPublished

Cited by3 cases

This text of 19 N.E. 85 (Dennerlein v. . Dennerlein) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dennerlein v. . Dennerlein, 19 N.E. 85, 111 N.Y. 518, 20 N.Y. St. Rep. 110, 66 Sickels 518, 1888 N.Y. LEXIS 1044 (N.Y. 1888).

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Opinion

*522 Danforth, J.

The grounds assigned by the purchaser for the interference of the court were (1.) his belief at the time he bid thatthe described premises consisted of thirty-one acres, whereas as he afterwards ascertained, they contained only twenty-four and three-quarters acres; (2.) the omission of the referee to advertise for liens on the premises. It appears that in addition to the notice of sale already referred to, a handbill was issued on the seventh of March in the name of the referee, in which the lines of boundary were omitted and the premises briefly described as the farm of “ the late John Dennerlein, containing thirty-one acres.” The plaintiff says he had one of these handbills in his possession and in bidding relied upon the statement of quantity contained therein. It differs from the advertisement and from the description of quantity in the contract signed by himself and by the referee, in that the latter contains the words “ more or less.” It does not appear that he had not seen at an earlier time the original and legal advertisement containing those qualifying words.

It is plain that the official advertisement contained nothing likely to mislead. The sale took place upon the premises, and the failure to obtain full and accurate information was solely due to the intending purchaser’s own negligence. There was sufficient ambiguity in the notice to call for a survey if definite knowledge as to quantity was material,' and the result shows that by the aid of a surveyor it was easily obtained.

The second objection is formal only. If any lien in truth existed, beside those provided for by the decree, or any cloud upon the title, or other fact prejudicial to the title, it should have been set out by the purchaser as ground for relief. Nothing of- the kind appears. It is, however, not material to discuss the facts. They have been passed upon by both the Special and the General Terms of the Supreme Court, and there is nothing in the case making either order an exception to the general rule which leaves each court to control, according to its discretion, the mode of executing its own judgment. (Fisher v. Mersey, 78 N. Y. 387.)

*523 Both appeals should, therefore, be dismissed, with costs in this court to the respondent of one appeal only.

All concur.

Appeals dismissed.

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*522 Danforth, J.

The grounds assigned by the purchaser for the interference of the court were (1.) his belief at the time he bid thatthe described premises consisted of thirty-one acres, whereas as he afterwards ascertained, they contained only twenty-four and three-quarters acres; (2.) the omission of the referee to advertise for liens on the premises. It appears that in addition to the notice of sale already referred to, a handbill was issued on the seventh of March in the name of the referee, in which the lines of boundary were omitted and the premises briefly described as the farm of “ the late John Dennerlein, containing thirty-one acres.” The plaintiff says he had one of these handbills in his possession and in bidding relied upon the statement of quantity contained therein. It differs from the advertisement and from the description of quantity in the contract signed by himself and by the referee, in that the latter contains the words “ more or less.” It does not appear that he had not seen at an earlier time the original and legal advertisement containing those qualifying words.

It is plain that the official advertisement contained nothing likely to mislead. The sale took place upon the premises, and the failure to obtain full and accurate information was solely due to the intending purchaser’s own negligence. There was sufficient ambiguity in the notice to call for a survey if definite knowledge as to quantity was material,' and the result shows that by the aid of a surveyor it was easily obtained.

The second objection is formal only. If any lien in truth existed, beside those provided for by the decree, or any cloud upon the title, or other fact prejudicial to the title, it should have been set out by the purchaser as ground for relief. Nothing of- the kind appears. It is, however, not material to discuss the facts. They have been passed upon by both the Special and the General Terms of the Supreme Court, and there is nothing in the case making either order an exception to the general rule which leaves each court to control, according to its discretion, the mode of executing its own judgment. (Fisher v. Mersey, 78 N. Y. 387.)

*523 Both appeals should, therefore, be dismissed, with costs in this court to the respondent of one appeal only.

All concur.

Appeals dismissed.

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19 N.E. 85, 111 N.Y. 518, 20 N.Y. St. Rep. 110, 66 Sickels 518, 1888 N.Y. LEXIS 1044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennerlein-v-dennerlein-ny-1888.

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