Flint v. George

8 N.Y.S. 221, 5 Silv. Sup. 314, 28 N.Y. St. Rep. 629, 1889 N.Y. Misc. LEXIS 2246

Opinion

Barnard, P. J.

At the sale of certain mortgaged premises in Westchester county, one Joseph Cunningham was the highest bidder. The condition of sale required a payment of 10 per cent., which Cunningham paid to the referee. Cunningham assigned the bid to Mr. Oppenheim, and Oppenheim stated to the referee that he could not complete the purchase. The property was again sold, and brought enough, without this 10 percent., to pay the claim and costs. Cunningham, after the sale, assigned his interest in the 10 per cent, to the North River Bank. Oppenheim assigned to one Mendall. The bank and Mendall each claim the money. Oppenheim never had any title to the 10 per cent. The bid was paid by Cunningham, and Oppenheim was to aid in procuring a loan to complete the purchase. The undertaking failed; and Oppenheim, at no time, had any right to the 10 per cent. If it had been used in the completion of the purchase, an account of it must have been made to Cunningham, and the completed purchase was to be in Cunningham’s interest. The Oppenheim claim is made up of legal service searches, and interest on the proposed loan to complete the purchase, which all rest upon an averment that Cunningham failed to get the security needed to procure the loan which Oppenheim was to get. The transaction fails to show, therefore, any title in the 10 per cent, in Oppenheim, and, of course, none in Mendall as his assignee. The case of Proctor v.ffarnatn, 5 Paige, 614, was an absolute assignment of the bid,. and the only question was whether the assignee of the bid was entitled to the deed. The order should be affirmed, with costs and disbursements.