
    Melvin Stephens, Resp’t, v. Robert Lewis Humphreys, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    Fobeclosoee—Sale—Stay—Teems on opening.
    Defendant appealed from a judgment of foreclosure which was affirmed at general term. He then obtained a stay until the amount of an undertaking on appeal to the court of appeals could be fixed, and subsequently a stay for two weeks upon his paying the cost of advertising and the cost of further advertising. His undertaking was approved subject to justification of the sureties. Hot having paid the cost of further advertising, an order was procured requiring him to pay the same at once or the sale should go on, and if paid, that the sale should be adjourned, and providing‘that he should pay the expenses on twenty-four hours’notice. Defendant was twice notified, but paid no attention thereto. One of the sureties justified, and defendant procured an order extending the time for the other to justify, but said order contained no stay. On the last adjourned day, and before the justification was completed, the property was sold, defendant’s counsel attending and being a party to the purchase thereof by a person who gave a check for the deposit on a bank in which he had no account. Held, that there was no stay at the time of the sale; that it was a matter of discretion with the court whether the sale should be set aside, and that it was a proper exercise of such discretion to require defendant to pay the costs óf adjournment, and the referee’s and auctioneer's fees as a condition thereof.
    
      Appeal by defendant from so much of an order setting aside a sale on foreclosure as imposed conditions that defendant should pay certain costs and disbursements.
    
      Smith & White, for resp’t; John K. Van Ness, for app’lt.
   Andrews, J.

This action was brought to foreclose a mortgage, and judgment of foreclosure and sale was entered November 7, 1890. From such judgment the defendant Humphreys took an appeal to the general term of this court, where the judgment was affirmed. Subsequently said defendant appealed to the court of appeals, and while such appeal was pending and on September 8, 1891, the property covered by said judgment was sold at public sale by the réferee therein named. Thereafter the plaintiff moved to set aside the sale, and such motion was granted on condition that said defendant should pay $41.50 cost of advertising the adjournment of the sale, $25 to the referee and $17 to the auctioneer, making in all the sum of $83.50. The claim made by said defendant is, that plaintiff’s proceedings were stayed, and that the granting of the order setting aside the sale was a matter of right, and that no conditions should have been imposed. The contention on behalf of the plaintiff is, that there was no stay at the time the sale was made, that it was a matter of discretion with the court whether the sale should be set aside, and that it was a proper exercise of such discretion to require the defendant to make the several payments mentioned in the order appealed from.

The facts are as follows: The original judgment of foreclosure and sale was entered on November 7,1890, and the judgment was affirmed by the general term on June 30, 1891. On July 25, 1891, defendant Humpheys served notice of appeal to the court of appeals, and on August 8,1891, served an order to show cause, with a stay of sale until the amount of the undertaking to be given on appeal should be fixed. On August 10, 1891, an order was entered fixing the amount of the undertaking, to be given within ten days from the date of the order, at $3,000, and staying the sale for two weeks from August 11th, requiring said defendant to pay the sum of $58.90, the cost of advertising, before 11:30 A. M. on August 11th, and also to pay the expense of advertising said further adjournment; and said sum of $58.90 was paid as ordered. On August 19, 1891, said defendant filed an undertaking on appeal to "the court of appeals, which was approved by a justice of this court, subject to the sureties justifying on notice. On August 24, 1891, Humphreys not having paid $27.30, the expense of advertising the notice of adjournment of sale, plaintiff procured an order requiring Humphreys to pay the same by 4 p. m. of August 24th, or that the sale should go on; and providing that if Humphreys paid said $27.30 the sale should be adjourned to September 8, 1891, and requiring said Humphreys to pay the expenses of further adjournment on twenty-four hours’ notice. On August 29, 1891, Humphreys was notified that the expense of advertising the adjournment of sale was $41.50, and requested to pay the same pursuant to the order of August 24th. On September 3, 1891, Humphreys having paid no attention to the above notice, a new one was sent, to the same effect." On August 25, 1891, Humphreys’, attorney served a notice that the sureties on the above mentioned undertaking would justify on August 31st, at 12 o’clock M. On September 5, 1891, upon an affidavit to the effect that one of the sureties on said undertaking had appeared and justified, and that the other surety was absent from the city, and that the defendant had been unable to produce a surety proposed in the place of the absent surety, defendant Humphreys’ attorney obtained an order that the time of said defendant to file and serve a new undertaking on appeal, pursuant to the orders theretofore made, and to give notice of justification of the same or other sureties, be extended to and including September 10, 1891. As above stated, the sale took place on September 8, 1891. On September 14, 1891, the new surety justified and the undertaking was approved. On October 10, 1891, the order was granted setting aside the sale, from a portion of which this appeal is taken.

We are of the opinion that the portion of the order appealed from should be affirmed. It has been decided by the special and general terms of this court that the defence interposed in this action is without merit. The conduct of the defendant in procuring an adjournment of the sale, and failing to pay the expense of advertising such adjournment, as required by an order of the court, was needlessly vexatious. It appears, moreover, that one of the counsel of the defendant Humphreys attended the sale, and was a party to the purchase of the premises by one Farnham, who gave a check for ten per cent, of the price at which the property was knocked down to him, upon a bank in which he never had an account, and where he was unknown. ' Under these circumstances, if the court had the power, it was certainly a proper exercise of discretion to require the defendant to make the payments mentioned in the order appeale 1 from a condition of setting aside the sale.

We are of the opinion that the court did have such power. The original order of August 10, 1891, which fixed the amount of the undertaking, contained a provision directing an adjournment of the sale of the premises for two weeks from August 11th; but the above mentioned order of September 5, 1891, which gave the defendant until September 10th to file and serve a new undertaking, and to give notice of justification of sureties, did not contain any provision whatever adjourning the sale. Plaintiff’s proceedings had not been stayed by the undertaking which had been filed, because one of the sureties had failed to appear and justify. The order of September 5th, which merely extended the time to file and serve a new undertaking, and to give notice of the justification of the sureties, did not of itself operate as a stay of proceedings. The defendant had failed to comply with the order of August 24, 1891, and pay $27.30, the expense incurred for advertising the adjournment to September 8th, although twice notified to pay the same. As the proceedings of the plaintiff were not stayed, and as the defendant had failed, to pay the said $27.30, the plaintiff was legally and morally justified in directing the referee to proceed with the sale.

The portion of the order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.  