
    Victor Koechl, Appellant, v. Gate Development Company and Others, Defendants. J. Alfred Berger, Jr., as Executor, etc., of Robert J. Freeman, Deceased, Respondent.
    Second Department,
    February 23, 1912.
    Foreclosure — sale—power of court to relieve purchaser from bid.
    The court in its discretion may relieve a person who has bid in lands on a foreclosure sale from his purchase where it subsequently appears that a person not made a party to the suit claims to be the owner of the equity of redemption and has moved for an order to show cause why the sale should not be vacated and set aside. This is true although the affidavits do not show a positive defect in title, as the purchaser should not be burdened with a threatened law suit.
    Appeal by the plaintiff, Victor Koechl, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 6th day of October, 1911, granting the respondent's motion to be relieved of his purchase on a foreclosure sale.
    
      Edwin Kempton and Charles Bradshaw, for the appellant.
    
      William S. Woodhull [Beno B. Gattell with him on the brief], for the respondent.
   Woodward, J.:

Emily F. and Hannibal French executed a mortgage to the Title Guarantee and Trust Company for $4,000 on the 3d day of November, 1899, which became due in three years from its date. The Title Guarantee and Trust Company assigned the bond and mortgage to the plaintiff in this action on or about November 16, 1899. Payment of the principal was subsequently extended to November 3, 1911, by an agreement made in 1908 by the Title Guarantee and Trust Company for the mortgagee, and one Annie Cohen, the then owner of the premises. Interest being unpaid, the plaintiff filed a Us pendens on December 3, 1910, and commenced a foreclosure action, which resulted in a judgment of foreclosure and sale on April 7, 1911. The premises were duly sold, J. Alfred Berger, Jr., as executor of Robert J. Freeman, becoming the purchaser for the purpose of protecting the estate, which was the owner of a second mortgage upon the premises for the sum of $2,000. The executor paid $523, ten per cent of the purchase price, together with $17 for auctioneer’s fees and other expenses. Intending to complete the purchase, Mr. Berger was informed by his attorney that he had been served with an order to show cause why the foreclosure sale should not he vacated and set aside and a resale ordered. This motion was made by an attorney representing the Greenwich Investing Company, claiming to he the owner of the equity of redemption in the premises purchased by Mr. Berger at the foreclosure sale. This motion resulted in an order denying the motion. Being thus advised of a claim on the part of the G-reenwich Investing Company, which was not a party to the foreclosure action, Mr. Berger moved the County Court of Kings county to he relieved of his purchase, and from the order granting this motion the plaintiff appeals to this court.

While it is true that the affidavits submitted upon the motion do not conclusively show that there is any defect in the title, it is plain to be seen that there is an opportunity for a lawsuit, which appears to he threatened. There is no doubt that there was a conveyance of the premises by the G-ate Development Company, one of the defendants in the foreclosure action, to the Greenwich Investing Company on the 30th day of September, 1910; that the deed was duly acknowledged on the 1st day of October, 1910, and recorded in the office of the register of the county of Kings on the 15th day of March, 1911, and it is claimed that the premises were in the actual possession of the Greenwich Investing Company, through its agent, one Cohen, and it is claimed that the plaintiff had notice of such claim of title and possession on the part of the Greenwich Company at the time of commencing the action. It is true that the facts do not appear positively, but there is clearly enough of the claim of the Greenwich Company to make it fairly certain that the title to the premises will be brought into question in some kind of an action, and it would be a hardship to the purchaser, who was compelled to purchase to protect the lien on the second mortgage, to compel him to stand the expense and annoyance of a lawsuit.

We think the matter rests in the discretion of the court, and that, no abuse of the discretion being shown, it is the duty of this court to affirm the order, which does no more than to place the respondent in practically the same position that he occupied before the sale.

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

Jenks, P. J., Hirschberg and Rich, JJ., concurred; Burr, J., not voting.

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.  