Miller v. Mayor of New York

New York Supreme Court

Miller v. Mayor of New York

53 Barb. 653, 1869 N.Y. App. Div. LEXIS 29

DecidedJanuary 4, 1869

StatusPublished

This text of 53 Barb. 653 (Miller v. Mayor of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Mayor of New York, 53 Barb. 653, 1869 N.Y. App. Div. LEXIS 29 (N.Y. Super. Ct. 1869).

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Opinion

By the Court, Sutherland, J.

I find no reasonable ground for saying that the referee’s findings of fact were not authorized by the evidence, or that his findings of fact did not authorize' his conclusion of law.

If King & Brush, the original purchasers at the auction sale, omitted to tender payment on the 1st of May, 1852, of the 15 per cent, and their bond and mortgage for the 75 per cent of the purchase money, their fault or. default in not doing so, must be deemed to have been waived by the defendants; for I cannot doubt that the defendants were bound by the arrangement which the plaintiffs made with the comptroller, in December following, as to the execution and delivery of the deed to the plaintiffs as the assignees of King & Brush. Relying on this arrangement, the plaintiffs paid King & Brush the ten per cent and the auctioneer’s fees.

The delay which subsequently took place, until in August, 1858, when the plaintiffs tendered the full amount of the purchase money unpaid, with interest, the referee found took place by mutual consent of the parties, from time to time, and was not the fault of the plaintiffs. This finding is abundantly supported by the evidence, if the [662]*662defendants should be considered as bound by the action of the comptroller or comptrollers in the matter.

[New York General Term, January 4, 1869.

I do not see upon what ground it can be reasonably claimed that the defendants were not bound by the action of the comptroller or comptrollers in the matter of postponing the delivery of the deed.

I think the statute of limitations did not commence running until the refusal of the comptroller to deliver the deed, in August, 1858.

I think the judgment should be affirmed, with costs.

Clerke, Sutherland and Geo. G. Barnard, Justices,]

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By the Court, Sutherland, J.

I find no reasonable ground for saying that the referee’s findings of fact were not authorized by the evidence, or that his findings of fact did not authorize' his conclusion of law.

If King & Brush, the original purchasers at the auction sale, omitted to tender payment on the 1st of May, 1852, of the 15 per cent, and their bond and mortgage for the 75 per cent of the purchase money, their fault or. default in not doing so, must be deemed to have been waived by the defendants; for I cannot doubt that the defendants were bound by the arrangement which the plaintiffs made with the comptroller, in December following, as to the execution and delivery of the deed to the plaintiffs as the assignees of King & Brush. Relying on this arrangement, the plaintiffs paid King & Brush the ten per cent and the auctioneer’s fees.

The delay which subsequently took place, until in August, 1858, when the plaintiffs tendered the full amount of the purchase money unpaid, with interest, the referee found took place by mutual consent of the parties, from time to time, and was not the fault of the plaintiffs. This finding is abundantly supported by the evidence, if the [662]*662defendants should be considered as bound by the action of the comptroller or comptrollers in the matter.

[New York General Term, January 4, 1869.

I do not see upon what ground it can be reasonably claimed that the defendants were not bound by the action of the comptroller or comptrollers in the matter of postponing the delivery of the deed.

I think the statute of limitations did not commence running until the refusal of the comptroller to deliver the deed, in August, 1858.

I think the judgment should be affirmed, with costs.

Clerke, Sutherland and Geo. G. Barnard, Justices,]

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Bluebook (online)

53 Barb. 653, 1869 N.Y. App. Div. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-mayor-of-new-york-nysupct-1869.