
    Horace T. Rowley, Respondent, v. Rachel Feldman and Others, Defendants. Thomas F. Baldwin, Appellant.
    
      Purchaser at a mortgage foreclosure sale—liability of, on his failure to complete his purchase — not''discharged by an attempt to collect a deficiency judgment — he is chargeable with, interest—cohere not charged interest he is not entitled to a credit for rents.
    
    "Where a purchaser at a mortgage foreclosure sale fails to complete his purchase and an order is made directing a resale and adjudging the delinquent purchaser liable for any deficiency arising thereon, and on the resale the property is' struck down for less than the, sum bid by the delinquent purchaser and a deficiency judgment is rendered against the mortgagor, the fact that the mortgagee endeavors to collect the deficiency judgment will not prevent him from pursuing the delinquent purchaser, especially when it appears that the mortgagee’s attempt to enforce the deficiency judgment was made at the instance" of the delinquent purchaser.
    In proceedings instituted to compel the delinquent purchaser to pay the deficiency arising on the resale, he may properly be charged with interest on the amount of such deficiency, as fixed by the confirmation of the report of sale filed by the referee who made the resale.
    Where the order directing the resale did not charge the delinquent with the interest accruing upon the mortgage debt in the interim between the original sale and the resale, the delinquent purchaser"is not entitled to have applied, in reduction of his liability, rents collected by a receiver of the premises during such interim.
    "Appeal by Thomas F. Baldwin, the purchaser at a judicial sale., from an order of the Supreme Court, made at the .Hew York Special Term bearing date the 10th day of March, 1902, as reset-. ■ tied by an order bearing date the 24th,clay of March, 1902, each of which orders were entered in the office of the clerk of the county. of New York, fixing the amount to he paid by him as a defaulting purchaser at a foreclosure sale herein, under an order made on the 22d day of April, 1901, directing a resale of the mortgaged premises and providing that the appellant should be liable for the difference between the amount of his bid and the amount for which the property subsequently sold, together with the costs and expenses of the resale and the water rates, taxes and assessments which might become liens on the property in the meantime.
    
      Charles C. Sanders, for the appellant.
    
      John Ewen, for the respondent.
   Laughlin, J.:

On the foreclosure sale, which took place on the 20th day of February, 1901, the premises were awarded to the appellant at his bid of $24,900. No down payment was required, and he subsequently refused to complete the purchase, claiming that he was acting for his mother, who repudiated it. Thereupon an application was niade to the court, upon notice to the appellant, for an order directing a resale of the premises and adjudging that he be liable for and directed to pay any deficiency between the amount of his-bid and the sum for which the premises might sell on such resale, for the costs and expenses of the resale, and for any taxes, water rates or assessments becoming liens on the property intermediate the date of his bid and the date of resale. That motion was granted and it resulted in the order of April 22, 1901. On the resale the property sold for $23,500, being $1,400 less than the appellant’s bid. Water rates aggregating $68 had accrued in the meantime, and the costs and expenses of the resale were $109.55, making a total of $1,577.55, which represents the loss to the interested parties by reason of appellant’s failure to complete his purchase. A deficiency judgment was entered against the mortgagor for $1,787.31, which the plaintiff was unable to collect. Steps were then taken to enforce the appellant’s liability. Upon his failure to pay the deficiency of $1,577.55 after demand, an order was made punishing him for contempt, which was reversed by this court upon the ground that the amount of his liability had not been determined prior to the institution of the contempt proceedings. (66 App. Div. 463.) Thereafter an application was made, on notice, to the Special'Term to have the amount of appellant’s liability judicially determined. The motion was granted and the amount fixed at the sum of $1,577:55, together -with interest thereon from the 23d day of May, 1901, which was a few days after the filing of the referee’s report of sale, which became final by its confirmation.

The appellant did not appeal from the order of- April 22, 1901, and it remains in full force and is res adjudieata as to his liability. The amount of the liability only remained to be determined. The appellant contends that his liability was discharged by an election on the part of the mortgagee to hold the mortgagor for the deficiency, which was manifested by proceedings to enforce the deficiency judgment. This claim is untenable. The mortgagor and other lienors as well as the mortgagee were interested in the enforcement ■of the appellant’s liability for his failure to complete the purchase. The mortgagee could not elect for the other interested parties, nor was there any election to follow any inconsistent remedy. The mortgagee’s endeavor to collect the deficiency judgment from the mortgagor is entirely consistent with a reservation of his right to proceed against the appellant if necessary, and there was proof to the effect that he pursued that course at the instance of the apipellant.

It is also contended by the appellant that the proceedings upon the resale were not binding upon him for the reason that hé did not have, notice of the resale. The order directing a resale was personally served upon him and he was before the court when it was made. His mother was a junior mortgagee and appeared in the action by attorney. The appellant was not a party to the action, but his mother’s attorney appeared for him on the hearing, which resulted in the order for the resale, and notice of the resale was served upon said attorney, who attended the resalé and bid upon the property. We think there is no merit in this claim. Notice was served upon the attorney who represented the appellant, so far as he had been brought before the court in the action. Furthermore, the order contained no provision requiring the service of notice upon him. Had he desired such notice, a provision to that effect would doubtless have been incorporated upon a mere suggestion. Having acquiesced in the order and allowed the parties to suppose that • this attorney was representing him, he cannot be heard now to contend that he did not have notice of the resale, which was duly advertised, even if entitled thereto. The resale was proceeded with promptly, and took place before the time to appeal from the order of April twenty-second expired.

We think the appellant was properly chargeable with interest from May 23, 1901. His liability was fixed by the order of April twenty-second, and the amount of his liability, became fixed by the confirmation of the referee’s report of sale. While it was essential that he should have a hearing on the determination of this motion before he could be punished for contempt, on such hearing it was proper to charge him with interest on the amount, for in no other way could the parties in interest be fully indemnified.

Intermediate the appellant’s bid and the subsequent sale a receiver of rents was appointed, and he collected $172.83, which was applied on the deficiency judgment. The appellant claims that this sum should have been applied in reduction of the amount of his liability. We think not. The order of April twenty-second was the basis for determining the amount of his liability, and it contained no such provision. Moreover, he was not by that order charged with the interest accruing upon the mortgage debt in the meantime, and consequently he was not entitled to be credited with the rents and profits.

It is further contended that the former order reversing the order punishing the appellant for contempt is res aetjudieata / that he is-not liable. That order merely determines that he was not at that time punishable for contempt, and nothing further.

By the terms of the resale the auctioneer’s fees and exchange charges, which aggregate seventeen dollars, were to be paid by the purchaser in addition to his bid. It appears that this amount is included in the expenses of the resale which goes to make up appellant’s liability. Presumably, the purchaser paid this item of seventeen dollars in accordance with the terms of sale. If that item is to be charged to the appellant as part of the expenses of the resale, it should be added to the purchaser’s bid, which would result in reducing the appellant’s liability by that amount and interest.

The other points raised have been considered, but domot require special mention.

It follows that the order should be modified by reducing the mount for which appellant is liable by the sum of seventeen dollars and interest thereon from May 23, 1901, and as so modified affirmed, without costs.

Van Brunt,. P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  