Tabro v. Brundage

10 N.Y. St. Rep. 867

Opinion

Dykman, J.

This is an appeal from an order denying a motion for a re sale. The action was for the foreclosure of a mortgage, and the premises have been already sold three times under the judgment. At the first sale the bid was $7,400; but there was a serious misapprehension respecting the size of the lot and the purchaser refused to consummate the purchase and a second sale was had for $2,050. The second purchaser failed also to pay his bid, and a third sale was had for $2,500. • Then a motion was made for a fourth sale, which was denied, and an appeal from the order of denial brings the case here.

There is no charge of irregularity or unfairness in the sale; but the complaint is made respecting the requirement of twenty-five per cent, upon the amount bid at the sale instead of ten. Whether the demand for the payment of twenty-five per cent, was so unreasonable as to justify the exercise of the discretion of the court in directing a re-sale depends upon all the surrounding circumstances.

Three times the purchasers had failed to pay their bids and complete their purchase. The last two times there seemed to be no sufficient reason for such failure, and it was quite inexpensive to the purchaser.

It was quite desirable to terminate fruitless efforts to bring a sale of the property to consummation, and one effective means to the accomplishment of that end would be the requirement of such a deposit by the purchaser as would operate as an inducement to pay the balance and receive a deed. Pecuniary interest is a powerful incentive to action, and an appeal to the motives which actuate men in matters of business was neither unwise nor oppressive in this case. The bid seems to be the value of the property and is nearly $500 above the amount bid on the second sale. Besides this there have been expenses incurred in reliance upon the last sale which should in fairness be borne by the property in case of another sale, which would materially reduce any possible advance realized upon another sale.

Upon the whole our conclusion is that the discretion of the court was wisely exercised in the refusal of another sale and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.