German-American Bank v. Russell

Appellate Division of the Supreme Court of New York

German-American Bank v. Russell

57 N.Y.S. 171, 39 A.D. 646

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 22, 1899

StatusPublished

This text of 57 N.Y.S. 171 (German-American Bank v. Russell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

German-American Bank v. Russell, 57 N.Y.S. 171, 39 A.D. 646 (N.Y. Ct. App. 1899).

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Opinion

PER CURIAM.

Upon the affidavits and papers used at the special term on the 18th of July, 1898, that court was called upon to exercise its discretion as to whether a resale should be ordered or not. There was a conflict in the affidavits in respect to the value of the property affected by the sale, and there was a conflict, to some extent, in the circumstances as to what occurred at the time the sale was made; and it is not apparent that the special term abused its discretion in making a conditional order allowing a sale to take place upon the terms mentioned therein. The sale had yielded $12,600, and the court provided in the order that an obligation should be given that, if a resale was had, at least $15,000 should be bidden, and in other respects prescribed the terms for the new sale. It is not apparent that sufficient time was not allowed in which to comply with the terms prescribed. If the appellant had availed himself of the terms mentioned, a resale would have taken place. Kellogg v. Howell, 62 Barb. 280, affirmed by the general term of the Fourth department June 4, 1872, and again affirmed, on the opinion delivered at special term, by the court of appeals (53 N. Y. 609). To the same effect are Graffam v. Burgess, 117 U. S. 181, 6 Sup. Ct. 686; Wesson v. Chapman, 76 Hun, 596, 28 N. Y. Supp. 192; Morgan v. Holladay, 48 How. Prac. 87.

2. No sufficient ground is made apparent for requiring the court to resettle the order. The order, therefore, of the 8th of August should be affirmed.

Order of the 21st of July, and also the order of the 8th of August, affirmed, with $10 costs and disbursements.

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PER CURIAM.

Upon the affidavits and papers used at the special term on the 18th of July, 1898, that court was called upon to exercise its discretion as to whether a resale should be ordered or not. There was a conflict in the affidavits in respect to the value of the property affected by the sale, and there was a conflict, to some extent, in the circumstances as to what occurred at the time the sale was made; and it is not apparent that the special term abused its discretion in making a conditional order allowing a sale to take place upon the terms mentioned therein. The sale had yielded $12,600, and the court provided in the order that an obligation should be given that, if a resale was had, at least $15,000 should be bidden, and in other respects prescribed the terms for the new sale. It is not apparent that sufficient time was not allowed in which to comply with the terms prescribed. If the appellant had availed himself of the terms mentioned, a resale would have taken place. Kellogg v. Howell, 62 Barb. 280, affirmed by the general term of the Fourth department June 4, 1872, and again affirmed, on the opinion delivered at special term, by the court of appeals (53 N. Y. 609). To the same effect are Graffam v. Burgess, 117 U. S. 181, 6 Sup. Ct. 686; Wesson v. Chapman, 76 Hun, 596, 28 N. Y. Supp. 192; Morgan v. Holladay, 48 How. Prac. 87.

2. No sufficient ground is made apparent for requiring the court to resettle the order. The order, therefore, of the 8th of August should be affirmed.

Order of the 21st of July, and also the order of the 8th of August, affirmed, with $10 costs and disbursements.

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57 N.Y.S. 171, 39 A.D. 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/german-american-bank-v-russell-nyappdiv-1899.

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