Osborne v. Osborne

New York Supreme Court

Osborne v. Osborne

26 Misc. 2d 821, 208 N.Y.S.2d 354, 1960 N.Y. Misc. LEXIS 2130

DecidedNovember 30, 1960

StatusPublished

This text of 26 Misc. 2d 821 (Osborne v. Osborne) 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

Osborne v. Osborne, 26 Misc. 2d 821, 208 N.Y.S.2d 354, 1960 N.Y. Misc. LEXIS 2130 (N.Y. Super. Ct. 1960).

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Opinion

Mario Pittoni, J.

Motion for an order directing the plaintiff to return certain moneys is granted to the extent of directing the plaintiff to return the sum of $1,780 to Gloria Rosner.

Admittedly, the Referee could not convey marketable title. Admittedly, a discontinuance of the partition action was obtained without a confirmation of the sale or the obtaining of a final judgment directing the conveyance in accordance with the sale. Therefore, the Referee is without the power to complete the transaction. The sum deposited with him, which is now in the possession of the plaintiff, should be returned to the successful bidder at the sale. The court has the power to order the return of this sum since “ By becoming a purchaser at a judicial sale, the contract of purchase is in literal sense made with the court ” (Parish v. Parish, 87 App. Div. 430, 432). Thére was no contract between the plaintiff and the purchaser. Settle order on notice.

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Mario Pittoni, J.

Motion for an order directing the plaintiff to return certain moneys is granted to the extent of directing the plaintiff to return the sum of $1,780 to Gloria Rosner.

Admittedly, the Referee could not convey marketable title. Admittedly, a discontinuance of the partition action was obtained without a confirmation of the sale or the obtaining of a final judgment directing the conveyance in accordance with the sale. Therefore, the Referee is without the power to complete the transaction. The sum deposited with him, which is now in the possession of the plaintiff, should be returned to the successful bidder at the sale. The court has the power to order the return of this sum since “ By becoming a purchaser at a judicial sale, the contract of purchase is in literal sense made with the court ” (Parish v. Parish, 87 App. Div. 430, 432). Thére was no contract between the plaintiff and the purchaser. Settle order on notice.

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Bluebook (online)

26 Misc. 2d 821, 208 N.Y.S.2d 354, 1960 N.Y. Misc. LEXIS 2130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-osborne-nysupct-1960.

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