
    Jeannette H. Francis (formerly Jeannette H. Martin), as Executrix, etc., of Isaac P. Martin, deceased, Respondent, v. Benjamin F. Watkins and Others, Respondents. Rube R. Fogel, Appellant.
    
      Mortgage foreclosure sale—error in the diagram attached to the published notice of sale — it does not excuse the purchaser from completing it.
    
    Where the notice of the sale in foreclosure, of property situated in the city of New York, correctly describes the property as being certain lots designated upon a specified map filed in the office of the registrar of the city and county of New York, and the plaintiff’s attorney, in compliance with rule 15 of the rules for the regulation of Special Terms of the Supreme Court in the first department, requiring a diagram of the property to be published with the notice of the sale, furnishes a correct, transcript of the map to the newspaper in . which the notice of sale is to be published, the fact that through the unintentional failure of an employee of the newpaper to accurately reproduce the diagram, the published diagram apparently represents the lots as larger than they actually are, although it correctly states the length of the boundary lines, will not entitle the purchaser at the sale to be relieved from his purchase.
    Appeal by Rube R. Fogel, the purchaser at the foreclosure sale in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th 'day of March, 1902, denying his motion to be relieved from his purchase.
    
      Louis Marshall, for the appellant.
    
      George A. Strong, for the plaintiff.
    
      Ernest P. Hoes, for the defendants Elisha M. Fulton and others.
   Ingraham, J.:

The property that was sold under the judgment in this action consisted of a plot of ground in the twelfth ward of the city of New York. In the notice of sale the property to be sold was described as three certain plots, pieces or parcels of land in the city of New York, “ laid down and designated on a certain map entitled Map of lands in the Twelfth Ward of the City of New York belonging to Isaac P. Martin, June 22, 1870, William Rumble, Surveyor,’ and filed in the office of the Register of the City and County of New Tork, in Tin Case 719, by the numbers 3, 4 and 7, and which said plots, taken together, are bounded as follows, this is to say : On the north by the Fort Washington Depot road; on the east by the said Fort Washington Depot road and by a private, road laid down on said map and by a part of plot number two laid down on said map; on the south by said plot number two, and on the west by the Boulevard Lafayette.” There was annexed to this advertisement of sale what purported to be a diagram of the property to be sold; which correctly set forth the number of feet upon the lines bounding the plot; but it is claimed by the purchaser that from the diagram he formed an- inaccurate idea of the size of the plot, although the number of feet was correctly stated, because the diagram ivas incorrect as to the direction of various lines bounding the property, and apparently represented the plot as larger than it actually was, and that in consequence of this mistake the purchaser should be relieved from his purchase. The written description of the property correctly described it. It referred to a certain map on file in the register’s office which contained a correct description. It further appeared that a correct transcript of this map was furnished by the .plaintiffs’ attorney to the newspaper from which a diagram was to be prepared, but those connected with the newspaper in preparing the diagram annexed to the notice of sale did not quite accurately reproduce the diagram submitted to them, and that it was in consequence of this inaccuracy, without the fault of any of the parties to the action, or the referee appointed to conduct the sale, that the plaintiff was misled. This diagram was annexed to the notice of sale under the provision of rule 15 of the Rules for the regulation of the Special Terms of the Supreme Court in the First Judicial District. That rule provides: The referee or officer making such sale shall cause to be published with the notice of sale a diagram of the property to be sold, or of which ah interest therein is to be sold, showing the street or avenue upon which such property is located, its street or avenue number, if any, and specifying the number of feet to the nearest cross street or avenue. * * * An unintentional error, however, in such diagram, * * * shall not invalidate the sale, nor authorize the court to relieve the purchaser, or order a new sale.”

By the rule requiring this diagram to be published, notice was thus expressly given that an error in the diagram should not be considered as a ground for setting aside the sale; and persons who intended to be purchasers at the judicial sale were thus notified that they were not to rely upon the correctness of this diagram in bidding upon the property. Upon the diagram annexed to this notice of sale there was no direction or location of the lines which constituted its boundary, and it is difficult to see how any one could attempt to make any accurate calculation as to the number of city lots included within these boundaries. A reference in the printed advertisement of sale to the map on file in the register’s office was notice to a purchaser where he could obtain an accurate description of the property. Instead of adopting this means, which would inform him upon the subject, he relied upon a diagram annexed to the published notice of sale, which must necessarily be inaccurate as to the direction of the lines therein expressed, or of the curves of the road Avhich bounded the property upon one side. He thus used the diagram for a purpose that was not intended and assumed from it' facts that it did not purport to state. He omitted to consult the map specified in the description contained in the notice of sale, and from which accurate information could have been obtained, and seeks to throw upon the parties to the action the burden of this negligence and the assumption, entirely unjustified by the diagram itself, and in disregard of the express notice contained in the rule directing the diagram to be annexed to a published notice of sale. There was no dispute but that the mistake, if there was a mistake, was unintentional and was the fault of neither of the parties to the action, nor the referee, but of the neAvspaper employee who prepared the diagram. This provision in the rule was not intended, as the learned counsel for the appellant seems to assume, to limit the power of the Supreme Court, but as a notice to purchasers that this diagram was not to be used by them as an accurate reproduction of the property, and that an unintentional error in the diagram should not be considered as a reason for relieving them from a purchase. The rule was adopted in order to convey to purchasers knowledge of the locality of the property to be sold. The formal legal description of the property which was to control both the purchaser and those interested in the action was not to be dispensed with; nor was this diagram a substitute for such a legal description. This formal description was correct, and informed all purchasers of the boundary, location and size of the property to be sold. There was nothing in this diagram that contradicted the published description of' the property. No one from the diagram alone could determine just the number of city lots included. That depended upon the curve of the street known as the Fort Washington Depot road, and the angles of the lines which constituted the south boundary of the property, and the diagram did indicate these curves or angles. The affidavit of Mr. Ford, the city surveyor, that if he relied upon the diagram attached to the terms of sale in the above action, he would be misled into overestimating the quantity of land appearing to be included in said diagram, is no justification for the appellant in relying upon such a diagram to indicate the quantity of land, as it did not purport to include such quantity, nor was any statement made in the diagram to justify an assumption that it did. That the property did not sell for more than it was worth appears from the uncontradicted fact that another bidder bid within fifty dollars of the amount bid by the purchaser.

The power to make this rule, as well as the other rules made by the Appellate Division of this department, is conferred by rule 83 of the General Rules of Practice, which provides that the Appellate Division in each department and the various courts of record máy make such further rules in regard to the transaction of business before them respectively, not inconsistent with the foregoing rules, as they in their 'discretion may deem necessary; and this gives to the Appellate Division power to regulate the practice of referees and the notice to be given in judicial sales, and the effect of,such notice of salé, not inconsistent with the Code of Civil Procedure or the General Rules of Practice.

It followed that the mistake of the purchaser, if mistake there was, was caused by his reliance upon this diagram as to a fact which it did not purport to state, in direct opposition to the description of the property by which the property was sold, which contained a reference to a map on file in the register’s office from which the real dimensions of the property could have been ascertained, and when, by the provision under which the diagram was annexed to the notice of sale, there was express notice given that an error in this diagram should not be considered as a. reason for relieving a purchaser from his bid.

We have put the decision of this appeal upon the ground that a mistake as a result of a reliance upon this diagram did not justify the court in relieving the purchaser from his bid; but in this case it expressly appears that the purchaser visited the property and inspected it prior to the purchase. It is not disputed that he saw from that inspection the boundaries of the property purchased, and he has obtained just the property that he saw and intended to purchase.

Upon the whole case we think the court below correctly refused to relieve the purchaser, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yah Brunt, P. J., McLaughlin and Hatch, JJ., concurred.,

Order affirmed, with ten dollars costs and disbursements.  