
    (69 Hun, 150.)
    FAY et al. v. FAY et al.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Partition Sale—Refusal to Accept Bid—Effect of Stipulation.
    The purchaser at a sale in partition paid 10 per cent, of the price, but failed to complete the sale. The order for a resale directed that he pay any deficiency, but such direction was stricken out by stipulation before the resale. Held, that either the refusal of the referee at the resale to accept the bid of such pmchaser, which was the highest, or his refusal to allow the amount paid by such purchaser on the first sale to be applied upon the resale, was ground for setting aside the resale, since after the stipulation such amount belonged to such purchaser.
    Appeal from special term, Westchester county.
    Action for partition by John Gr. Fay and Katherine O. Fay against William Gr. Fay, Henry A. Fay, and Elizabeth Fay. From a judgment vacating the referee’s report of sale, defendants appeal.
    Affirmed.
    Argued before BABKABD, P. J., and PBATT, J.
    Herman Vogel, for appellants.
    William H. Pemberton, for respondent John G-. Fay.
    John McCrone, for respondent Katherine O. Fay.
   BABHABD, 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 10 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 13th 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 10 per cent, paid in by John Gr. 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 second should not stand. If the referee refused to accept the 10 per cent., só far as the money in his hands belonging to John Gr. Fay would go, the sale should not stand. When the clause striking out his liability for a deficiency was stricken out, this 10 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 10 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.  