
    John G. Fay et al., Resp'ts, v. William G. Fay et al., App'lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Judicial sale—Resale.
    An order directing a resale in partition was amended by striking out the clause subjecting the purchaser at the first sale, one of the plaintiffs, to liability for the deficiency on the resale. On such resale the referee either refused to receive a bid from said plaintiff, or to allow the money paid on the first sale to be applied on the cash payment required by the terms of sale. Held, that in either event the referee erred; that the sale was not a fair one, and that another sale should be ordered to enable the parties to bid on equal terms.
    Appeal from order vacating and setting aside certain sales in partition and directing a resale of the property.
    
      Herman Vogel (Norman A. Lawlor, of counsel), for app’lts; Wm. H. Pemberton and John McCrone, for resp’ts,
   Barnard, P. J.

On the 11th of June, 1892, certain premises in Westchester county were, under a sale in partition, struck off by the referee to John G. Fay, one of the plaintiffs, for $29,650. The purchaser paid ten per cent., and failed to complete the sale. An order for a resale was subsequently made, with a direction that the former purchaser pay any deficiency. On this resale the property was struck off to Henry A. Fay, one of the defendants, for $15,250. This sale was made on the 20th of October, 1892. Before the sale,on the 18th of September, 1892, the clause subjecting John G. Fay to the loss upon a resale, if any, was upon a written consent and stipulation between the attorneys stricken out of the order directing a resale. Upon this resale the plaintiff, John G. Fay, claimed to have made a bid, and that his bid was refused. This bid was one of $22,000 for the property. The papers show a serious discrepancy upon the fact Mr. Crone says he heard such a bid and its refusal. Others support him. The referee states that he refused to take an order on the ten per cent, paid in by John G. Fay on the first sale. In either case there should be a resale. If the referee refused to receive a bid from John G. Fay because of his default in completing the first sale made the sale should not stand. If the referee refused to accept the ten per cent., so far as the money in his hands belonging to John G. Fay would go, the sale should not stand. When the clause subjecting him to liability for a deficiency was stricken out, this ten per cent, was free, and belonged to John G. Fay. The order striking out the clause was a part of the case, and the referee was bound to accept it as such. There are many other facts stated in the case which have no relevancy except to bewilder the question decided. The first sale was confirmed, and not carried out by the purchaser. The order for a resale held the first purchaser liable for deficiency, and by an agreement between the attorneys an order was made striking out this clause. The first purchaser had paid $2,960 to the referee on the first sale, and upon the second sale, and after this order releasing him from liability, the referee refused to take any part of this $2,960 upon the ten per cent, to be paid on such second sale. This sale should not stand because it was not fair. One of the owners was deprived of his right to bid on equal terms with the defendant who purchased at the resale.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs; Dtkman, J., not sitting.  