
    William Kennedy, Plaintiff, v. Michael E. Bridgman et al., Defendants.
    (Supreme Court, Greene Special Term,
    May, 1899.)
    (Foreclosure — Besale.
    Where property has been sold, in foreclosure, to a third party, below its assessed valuation and without notice, other than by advertisement, to a subsequent mortgagee whose mortgage will be wholly cut off, a resale will be ordered at his instance, where the plaintiff does not object, the subsequent mortgagee binding himself legally to bid more at the resale than the assessed valuation.
    Motion to set aside a sale under a judgment in foreclosure and for a resale.
    Charles I. Webster, for John E. Bridgman, for motion*
    Joseph C. Behan, for purchaser, opposed.
    Shaw, Bailey & Murphy, for plaintiff.
   Chase, J.

Plaintiff is the owner of a mortgage of $5,000, given by the defendants, Michael E. Bridgman and Ellen C. Bridgman, on certain property in Troy, N. Y. The defendant, John F. Bridgman, is the owner of á mortgage of $500, given by the same persons on the same property, which mortgage is a subsequent lien to that of the plaintiff’s mortgage. Plaintiff commenced this action to foreclose his mortgage, and the summons and complaint were served on all the defendants.

After the action was commenced the plaintiff having left the city for the winter, the defendant, John F. Bridgman, had a talk with the person who had charge of plaintiff’s business, and he understood from such talk that nothing further would be done in the suit unless he (John F. Bridgman) was notified. Judgment was, however, entered in the action, and the property advertised for sale and sold on the 18th day of February, 1899, to Patrick Farrelly for $5,515, being just sufficient to pay the plaintiff’s claim and costs. The purchaser was the only bidder at the sale other than the plaintiff’s attorney. In case this sale is not set aside, the $500 mortgage of John F. Bridgman will he a total loss to him. John E. Bridgman was never- notified, of the proceedings subsequent to the talk with plaintiff’s agent, and he did not in fact know of the property being advertised for sale or that the sale was about to take place. The facts as above stated are not contradicted.

Plaintiff neither asks for nor objects to a resale. John F. Bridgman asserts that the property is assessed for $6,000 and is worth $7,000, and offers to bid at least $6,100 on a resale, and presents with his papers on this motion an adequate bond conditioned that he will on a resale make such bid and that in case the property is struck off to him he will pay the amount so bidden.

The motion is granted on condition that John E. Bridgman pay to Patrick Farrelly or his attorney, the sum of $50 to reimburse him for moneys expended by reason of his purchase, and on the further condition that such payment be made within five" days from the entry of this order and the service of a copy thereof with notice" of entry on each of the parties appearing on this motion.

Ordered accordingly.  