Kingsland v. Bartlett

8 Abb. Pr. 42

Opinion

By the Court.

*—Clerke, J.

An application to open a sale under a judgment, on the ground of a misapprehension as to the time of sale, or any other circumstances not affecting the regularity of the proceedings, must necessarily be addressed to the discretion of the court. And this discretion is regulated, as in every case where the court is called to exercise it, by the consideration—whether, from the collateral facts, the conduct of the parties, and perhaps the amount for which the property was sold, it would be expedient, in justice to all concerned, including the purchaser, to order a re-sale. This excludes the idea of any right on the subject. There can be no right where no legal mistake has been committed by those who have conducted the proceedings. There may be hardship; but it is entirely for the consideration of the judge who hears the application.

I think, therefore, the appeal should be dismissed, with $10 costs.

Present, Davies, P. J., and Clerke, J.