
    Elisha Gregory, Plaintiff, v. The United States Fidelity and Guaranty Co., Defendant.
    (Supreme Court, New York Special Term,
    October, 1904.)
    Auction sale — Secret agreement that the auctioneer is only to receive a bid satisfactory to the vendor — Suit against the surety for the auctioneer for the proceeds of the sale — Employment of a “ puffer.”
    The fact that an owner of personal property sold at public auction had a secret arrangement with the auctioneer that the property was not to be sold except at a bid satisfactory to such owner, does not render the auction sale illegal or constitute a defence to an action brought by the owner of the property against the surety on the auctioneer’s bond, to recover the proceeds of the auction sale which the auctioneer has failed to turn over to the owner, where it is not disputed that the property was actually sold to the highest bidder and no claim is made that the owner made use of a “ puffer ” to bid up the price of the property.
    Semble, that if the owner had made use of a “ puffer ”, the sale would not have been void, but voidable only at the election of the purchaser.
    Demurrer to answer.
    Richard J. Donovan, for plaintiff.
    Leonidas Dennis, for defendant.
   Blanchard, J.

The auction sale set forth in the pleadings was not necessarily illegal because of the fact that the plaintiff may have had some secret arrangement with the auctioneer that the property was not to be struck down to a purchaser except when the amount bid was satisfactory to the plaintiff. It is not disputed that the property sold was actually sold to the highest bidder, and there is no claim made by the defendant that the plaintiff made use of a “ puffer ” to bid up the price of the goods sold, as was the case in Bowman v. McClenahan, 20 App. Div. 346. If such a “ puffer ” had been used by the plaintiff I do not think the sale would have been void, hut that it would have been voidable at the election of the purchaser only. Minturn v. Main, 7 N. Y. 220. The plaintiff having sold the goods at auction to the highest bidder and the auctioneer having failed in his duty to pay over to the plaintiff the proceeds of sale, the defendant is liable to the plaintiff as the surety on the auctioneer’s bond. Laws of 1897, chap. 682, § 5. 'The demurrer to the answer for insufficiency should he sustained, with costs.

Demurrer sustained, with costs.  