Hogan v. . Hoyt

37 N.Y. 300

• Court: New York Court of Appeals
• Decided: September 5, 1867
• Status: Published

Opinion

The appellant is mistaken in supposing that the judgment of foreclosure and the report of sale, are not "proceedings," in the court below. The authority of that court to amend them nunc protunc is clear. (Code, § 173.)

The question was one addressed to the discretion of the Supreme Court, and no facts appear in the papers to invest an appellate tribunal with authority to reverse its decision. We are bound to assume that the sale was fairly made; for that was settled in the court below, by an adjudication at the General Term, in which the appellant acquiesced. The question, whether the sale should be made by the sheriff or a referee, was one which rested in judicial discretion. The legal presumption is that it was honest and fair; as it was made, in either case, by a responsible officer, under the immediate supervision of the court, by which it was approved on a hearing of all the parties.

There is no force in the objections, that the complainant, Hogan, is dead; that the action has not been revived; and that Fausto Mora, the purchaser, was not a party to the suit in which the motion was made. We had occasion to consider these questions in the case of Sawyer v. Hubbell, decided at the last term, and our conclusions were in accordance with the views now maintained by the respondent.

The appellant, who acquiesced in a sale by the sheriff, could take no more effectual means to quiet the fears of a purchaser; and he is not in a position now, to avail himself of an afterthought, by opposing technical cavils to the rights of a vendee, who bought in perfect good faith. The order should be affirmed, with costs, as upon a special motion.

All the judges concurring,

Judgment accordingly.