
    George F. Vingut, App’lt, v. George T. Vingut, Deft. Benjamin P. Fairchild, Purchaser, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Judicial sale—Mistake in bed.
    Respondent bid upon property at a judicial sale, and the same was struck down to him. He had not seen the notices of sale, nor read the hand-bill circulated at the sale, and refused to sign the terms of sale, claiming that he was mistaken as to the location of the property, and requested the auctioneer to put it up again, which was refused. Held, that there was a clear mistake of fact on respondent’s part, and that he should be relieved from the purchase on indemnifying against the expense of a resale.
    Appeal from order denying motion to compel purchaser to-complete purchase.
    
      J. J. MachUn, for app’lt; H. O' Gorman, for purchaser.
   Van Brunt, P. J.

The complainant was a purchaser of the' premises in question at a partition sale; and upon his failure to complete his purchase a motion was made that he be compelled todo so, which was denied, and from the order thereupon entered, this appeal is taken. The defense which the respondent urged to the motion below was that he was mistaken as to the location of the property when he bid upon it at the sale.

It appears from the papers which were read upon the motion, that besides the publication of the legal notices, hand-bills containing maps describing the property to be sold were printed under the direction of the referee; that immediately before the sale such hand-bills were distributed among the surrounding bystanders ; that the lot was put up for sale and knocked down to the respondent, he being the only bidder for it, at $9,000 ; that he-gave the auctioneer the name of Frank Yoran as the purchaser, but claiming to have discovered that he was mistaken in respect to the location of the property, be so stated to the auctioneer, and requested him to put the lot up again, which request the auctioneer declined to comply with. The respondent refused to sign the terms of sale or to complete the purchase.

It seems to be admitted by the papers that the amount which "was bid by the respondent for the lot in question was in excess ■of its value, and that the purchaser was a dealer in real estate, familiar with the values of real estate in the city of New York. And that the respondent was actually mistaken, as he claims to have been, seems to be established.

It appears that he had not seen any of the notices in respect to the sale, and although he had in his hand one of the diagrams distributed at the commencement of the sale he had no opportunity to examine it before the lot bid upon by him was put up for sale, and his was the only bid offered, it being, as has already been said, in excess of the real value of the lot as it was actually ■situated, but much below the value of the lot if it had been situated as was supposed by the respondent.

It seems to us under these circumstances that there was a mistake in fact upon the part of the respondent, and that he should be relieved from his purchase, such mistake having' been beyond question established.

The case differs from that of Dennerlein v. Dennerlein, 111 N. Y., 518; 20 St. Rep., 110, in that in the case cited it did not appear that the purchaser had not seen at an earlier time the original legal advertisement containing certain qualifying words which removed the objection which the purchaser had to the title, and also in that case the purchaser had signed the terms of sale containing those qualifying words.

We are of opinion, however, that the respondent should have been charged, as a condition of relieving him from his purchase, with the expense of a resale, such expense being incurred because of the mistake of the respondent, and that only.

The order should be modified, therefore, by relieving the respondent from his purchase upon his indemnifying against the ■expense of a resale; and, as so modified, affirmed, without costs.

Daniels, J., concurs.

Barrett, J.

I concur. Mr. Fairchild was not guilty of negligence with regard to the mistake in question. And I think it would be inequitable under the particular circumstances of the case to hold him to a bargain which he never intended to make, and which resulted from a mere oversight not amounting to negligence.  