
    Helen Dennerlein v. John Dennerlein et al.
      
    
    
      (Court of Appeals,
    
    
      Filed December 4, 1888.)
    Partition sale—Description oe porperty—Negligence oe purchaser.
    One Webber purchased certain property at a partition sale, and paid ten per cent of the purchase price, after subscribing the conditions of the sale, which de-cribed the premises as being tlie farm of the late J. D., containing thirty-one acres, “more or less.” The official advertisement contained a correct description, but a hand-bill which Weber had seen described the premises as containing thirty-one acres, without adding the words more or less. The premises in fact contained only twenty-four acres. Held, that the purchaser was not entitled to be relieved from his contract; that there was sufficient ambiguity to put him on his guard, and his failure to obtain full and’ accurate information was due to his own negligence since he could have obtained definite information as to the quantity by survey.
    Appeal from a judgment of the supreme court, general term, second department, affirming an order made at the special term.
    On the 5th day of February, 1887, a judgment in partition was rendered by the supreme court, directing referee Banks to sell at public auction, in the usual manner, premises described as follows: All that certain piece or farm of land bounded and described in a deed of conveyance, from Josiah Briggs and wife to George Dennerlein, bearing date the 10th day of February, 1886, as follows, to wit: all that certain piece or farm of land situate, lying and being in the town and county of Westchester, and state of New York,bounded as follows: Beginning at the Bear Swamp lane, leading from Westchester to the Snuff hills on Bronx river, at the southwest corner of the land adjoining the land late of Thomas Baxter, but now of Michael and Andrew Dun, thence running northerly, as the stone fence now stands, twenty-one chains and fifteen links, thence easterly to a sharp rock, thence southeasterly in a straight line through the woods to the land late of Simon Paul, but now of James Hauxhurst, thence running as the fence now stands southerly to the lands late of John Oakley, thence running ■along the said lands southwesterly, as the fence now stands, to a white oak stump at the aforesaid- road, thence westerly along the Bear Swamp road to the place of beginning, containing thirty-one • acres, be the same, more or less, being .the same premises which were conveyed by Frederick Ever and wife to Josiah Briggs, by deed, dated April 1, 1865.
    In pursuance thereof he gave notice on the 11th' of February, 1887, by posting an advertisement that he would sell the premises so described on the 28th of March then next, and at the sale then made, Eichard Webber, became the purchaser at the price of $15,000, and paid ten per cent, after subscribing conditions of sale, by which it was provided that the balance of the bid should be paid on the 28d of April, and in d,efault thereof, the premises should be again put up for sale under the direction of the referee, with or without application to the court, as he might elect, and ‘ ‘ the purchaser held liable for any deficiency ” resulting -therefrom and the costs and expenses of the' re-sale. The purchaser did fail to pay the remainder of the purchase-money, and applied to the court for an order releasing him from the bid, discharging him from all claim in the premises, and directing the referee to re-pay to him the ten per cent, and also his costs and expenses, amounting to $470. The court denied the motion and on application of the plaintiff, directed a re-sale and “ that the purchaser at the first sale' pay the deficiency resulting therefrom. ” The purchaser, Webber, appealed to the general term, where both orders were affirmed, and he now appeals to this court.
    
      L E. Pendergast, forapp’lt; II. C. Henderson, for resp’t.
    
      
       Affirming 12 N. Y. State Rep., 640.
    
   Danforth, J.

The grounds assigned by the purchaser for the interference of the court were,

First. His belief at the time he bid that the described premises consisted of thirty-one acres, whereas as he after-wards ascertained, they contained only twenty-four and three-quarters acres.

Second. The omission of the referee to advertise for liens on the premises. It appears that in addition to the notice of sale already referred to, a handbill was issued on the 7th of March, in the name of the referee, in which the lines of boundary were omitted and the premises briefly described as the farm of the late John Dennerlein, containing thirty-one acres.” The plaintiff says he had one of these handbills in his possession and in bidding relied upon the statement of quantity contained therein. It differs from the advertisement and from the description of quantity in the contract signed by himself and by the referee, in that the latter contains the words “ more or less.” It does not appear that he had not seen at an earlier time, the original and legal advertisement containing those qualifying words. It is plain that the official advertisement contained nothing likely to mislead. The sale took place upon the premises, and the failure to obtain full and accurate information was solely due to the intending purchaser’s own negligence. There was sufficient ambiguity in the notice to call for a survey if definite information as to quantity was material, and the result shows that by the aid of a surveyor it was in fact easily obtained.

The second objection is formal only. If any liens in fact existed, other than those provided for by the decree, or other cloud upon the title tendered, or other fact prejudicial to the title, it should have been set out by the purchaser as ground for relief. Nothing of the kind appears. It is, however, not material to discuss the facts. They have been passed upon by both the special and the general terms of the supreme court, and there is nothing in the case making* either order an exception to the general rule which leaves each court to control according to its discretion, the mode of executing its own judgment. Fisher v. Hersey, 78 N. Y., 387. Both appeals should therefore be dismissed with costs in this court to the respondent, of one appeal only.

All concur.  