
    John G. Fay et al., Resp'ts, v. William G. Fay et al., Appl'ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Appeal from order denying motion for judgment of confirmation of report of sale of real property in partition.
    
      Herman Vogel (Norman A. Lawlor, of counsel), for app’lts; Wm. H. Pemberton and John McCrone, for resp’ts.
   Barnard, P. J.

The conclusion reached upon the appeal from the order granting a resale, renders unnecessary any examination in this case. The denial of the motion to vacate and overrule the exceptions to the referee’s second sale and for judgment upon such resale, must of necessity be upheld if the sale itself was irregular and unfair. It appeared in the other appeal that the referee either refused to receive a bid from one of the owners or refused to allow the money in his hands, as referee, belonging to John Gr. Fay, to be applied upon the ten per cent, cash payment required by the terms of the resale. It was just and fair to order a third sale so that the parties might bid on equal terms.

The order should be affirmed, with ten dollars costs and disbursements.

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