
    Drayton Burrill, as Trustee under the Last Will and Testament of Mary E. Bogert, Deceased, for Mary A. Steward, and as Trustee under the Last Will and Testament of James L. Bogert, Deceased, for Mary A. Steward, Appellant, v. William H. Flitner, Respondent, and Others, Defendants. St. Matthew’s Roman Catholic Church, Respondent.
    First Department,
    November, 1905.
    Resale of mortgaged premises because of misunderstanding as to adjournment Of sale — when portion of expenses of purchaser should not be imposed on mortgagee. .
    A resale of mortgaged premises was ordered because of a misunderstanding - between the attorneys for the mortgagor and mortgagee as. to whether the first sale was to be adjourned because a partial payment on the debt had.been made by the mortgagor., Such order of resale provided that certain expenses . incurred by the, purchaser at said first sale were to be apportioned between the mortgagor and mortgagee equally. '
    
      Held, that the mortgagee should not be charged 'with a portion of this- expense, as no fault on his part was charged and the court had merely conferred a favor on the mortgagor. ■
    McLaughlin, J., dissented, with opinion.
    Appeal by the. plaintiff, Drayton Burrill, as trustee- under the 'will of Mary E. Bogert, deceased, and under the will of James L. Bogert, deceased, for Mary A. Steward, from so much of an order of the Supreme Court, made at. -the Dew York Special Term and entered in the office of the clerk of the county of Dew .York on the 17th day of June, 1905, as allows the "payment of any ' sum of money to St. Matthew’s Doman Catholic Church, and imposes the payment thereof to be apportioned between and charged against the plaintiff, and defendant Flitner equally.”
    
      Charles C. Marshall, for the appellant.
    
      George H. Vandewalker, for the respondent Flitner.
    
      Frederick H. Van Houten, for the respondent St. Matthew’s Roman Catholic Church.
   Patterson, J.:

In an action -for the foreclosure of a mortgage a sale was had under judgrnent and the premises were bid in by one Patrick J, Heaney, who assigned his bid to St. Matthew’s Homan Catholic Church. That corporation was ready to complete the purchase in good faith and expended money in searching the title and in the payment of auctioneer’s and other fees. After the sale the defendant William H. Flitner, mortgagor, made an application to the Supreme Court for a resale, setting forth in effect that partial payments had been made to the plaintiff’s attorney on account of the judgment, in consideration of which there was an understanding, not, however, reduced to writing, that the sale should be adjourned and that the notice of sale and advertisement of sale should be ineffectual. There is a marked conflict in the affidavits presented on the motion as to the details of certain negotiations between Mr. Flitner’s attorney and the defendant’s attorney. It undoubtedly is true that Mr. Flitner’s attorney understood that a sale would not be made on the advertised day, but' it is equally apparent that the attorney for the plaintiff had no such understanding. In those circumstances, the court below saw fit to order a resale of the premises, and in the order directed that the motion to vacate and set aside the sale be granted and a resale of the premises be had, provided that within a certain number of days from the entry of the order, William H. Flitner should deliver to the plaintiff a good and sufficient bond to indemnify him against any deficiency, and it it was also ordered that the purchaser, the St. Matthew’s Homan Catholic Church, be allowed the sum of $323 to cover the expenses of the examination of the title, and the further sum of $17 paid to the auctioneer upon the former sale of the premises, and the further sum of $44 interest upon the deposit paid by the purchaser to the referee on the former sale, “ all of which sums shall be payable as prior liens in the first instance out of the proceeds realized at any resale of the property, and to be apportioned between and charged against the plaintiff, and defendant Flitner equally.” The plaintiff' appeals from so much of the order as provides for the apportionment between him and the defendant Flitner of the amount to be paid to the purchaser at the sale.

We see no reason why the plaintiff should be charged with any portion of this expense. He is not convicted of fault, nor has his attorney done anything which calls for the imposition of costs in any form against the plaintiff. The court below in the exercise of its discretion has seen proper to confer a favor upon the defendant Flitner and in doing so it has Very properly protected the rights of the purchaser by compelling payment of the outlay it has made in. the transaction; but we are not able to perceive any reason why this favor extended to the defendant Flitner should be at the cost or expense of the plaintiff, who. has done nothing wrong and has not misled Mr; Flitner who. is relieved from a situation: which resulted altogether from an unfortunate misunderstanding upon the part, of his attorney who in his correspondence with'the attorney for the plaintiff acquits that gentleman of any intention to do wrong.

The order should be modified by striking therefrom the' provision relating to the apportionment of the expenses of the purchaser and ■ requiring defendant to pay the same, and. as modified the order will be affirmed, with ten dollars costs and disbursements to the appellant.

O’Brien, P; J., In.graham and Laughlin, JJ., concurred; McLaughlin,, J., dissented. ' . '

McLaughlin, J. (dissenting):

The defendant’s attorney claimed that he had an understanding with the plaintiff’s attorney that Sale of the property covered by the mortgage would, not be made on the advertised day.' This was denied by plaintiff’s attorney. ' •

The learned justice at Special Term' reached the conclusion, as is evidenced by the order appealed from, otherwise it would no,t have' been mayle, that an agreement to this effect had been made by the attorneys for the respective parties, and for that reason ordered a resale and directed that the expenses incurred by reason of the first, sale should he'first paid out of the proceeds of the .property when sold.

It' was for the learned justice to determine upon what terms a resale should be had, and he having determined this fact upon thpapers presented; his discretion ought not to be'interfered with.

Aside from this I think the terms imposed eminently fair. I, therefore, vote to affirm the order, with ten dollars costs and disbursements. ■

Order modified as stated in opinion, and as modified affirmed, with ten dollars costs and disbursements to the appellant.  