
    Thomas C. Rowe, Appellant, v. William E. Granger and Others, Respondents.
    Third Department,
    March 13, 1907.
    Vendor and purchaser—when bidder on execution salé who fails to complete purchase not entitled to property sold — when purchaser loses title by judgment against sheriff in another action—costs — when separate bills allowable.
    A bidder at the sale of property on execution is not vested with title by the mere act of bidding the property off, and if payment is postponed until the , following day and in the meantime the property is taken from the sheriff by requisition in another action, the bidder is not entitled to the premises.
    A sheriff must sell for cash and to consummate a sale there must be a bidder, the property must be struck off and the bidder must complete his purchase by complying with the terms of sale.
    When a sheriff accepts a bid on sale on execution, but postpones payment until the following day and the property is taken from the sheriff under requisition in another action in which the plaintiff succeeds, the judgment in that action is binding on the prior bidder even though the sheriff by postponing the time of payment be considered to have become the bailee of the purchaser.
    In an action at law defendants who separately appear and answer may tax separate bills of costs unless it be shown that they are united in interest or collusively appear by separate attorneys in bad faith for the purpose of enhancing the costs.
    Extra allowance affirmed.
    Appeal by the plaintiff, Thomas 0. Rowe,' from a judgment of the' Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 22d day of September, 1906, upon the decision of the court, rendered after a trial at the Albany Trial Term without a jury, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 13th day of November, 1906, denying the plaintiff’s motion for a retaxation of costs.
    
      Andrew J. Nellis and David H. Stanwix, for the appellant.
    
      John Cadman and E. F. McCormick, for the respondents.
   Sewell, J.:

The principal question in this case is whether the sale by the sheriff of the property in question was completed.

The property was duly exposed for sale October 6, 1904, under executions issued against the property of the Yuengling Hudson New York Breweries, and was bid off by the appellant for about $1,600. On the.day of sale the appellant offered to pay the amount of his bid, and the sheriff said, Let it go until to-morrow morning, then you can pay for it and take it away.” The next morning, before the appellant offered to pay the amount bid,- the property was taken from the possession of the sheriff by the coroner under a requisition issued in an action in which the defendants herein were plaintiffs and the sheriff was defendant.

The action was brought to trial and a judgment was entered in favor of the defendant therein, which awarded him the possession of the property or $2,000, in case the possession thereof is not delivered to the defendant.”

April 27, 1905, the plaintiffs in that action paid to the sheriff the amount directed to be paid, in lieu of the delivery of the property, and retained possession. On the same day the plaintiff herein tendered to the sheriff the amount bid by him at the sale, less fifty dollars paid October 8, 1904, which the sheriff'refused to receive.

■ The appellant contends that there was a valid sale of the property in question, and that it was complete when it was struck off to him.

We are of the opinion that this claim is not well founded. It is _ not enough that property is bid off at a sale on execution. The legal title is. not divested or transferred, nor is the execution satisfied by the single act of bidding it off. In such a sale, as in all sales at public auction, three things are necessary to consummate it. There, must be a bidder ; the property must be “ struck off ” or “ knocked down,” and the bidder must complete his purchase by complying with the terms of the sale.

It is too well settled in this State to be questioned that a sheriff must sell for cash; that payment of the amount bid is one of the conditions of the sale imposed by law, and that if a bidder to whom property is struck off refuses or omits to make payment the sheriff must avoid the sale and resell it.

This rule is intended to protect the defendant in the execution as well as the judgment creditor, by securing to the former the continuing right of ownership until the amount bid for the property is actually paid.

Applying this rule to the present case, it is seen that the appellant did not obtain title to the property in question but only a right to acquire it by paying the purchase money and perfecting the sale, which it is admitted he did not do.

This doctrine was held and expressed in the case of Holmes v. Richmond (19 Hun, 634). In that case the sheriff offered the property for sale on an execution, and it was struck off to Swinburne & Co., who said they were not ready to pay then, but would pay the bid in the morning when the banks were open, and the sheriff assented to giving them the time until the next morning at ten o’clock. The next morning before Swinburne & Go. appeared to pay their bid, one of the defendants in the executions appeared at the sheriff’s office and paid the amount of the execution to the sheriff; afterwards Swinburne & Go. appeared and offered to pay their bid, but the sheriff refused to receive it. The court, at General Term, said: “We think the nonsuit was entirely correct. The Erst sale was not completed, but the sheriff gave the bidder time to pay the money bid, which he had no authority for doing. He could not make a valid sale except for cash, and the sale was not complete until the payment of the money bid.”

It is not necessary, however, in order to support the judgment, to maintain that the appellant did not acquire a good title to the property. If it be assumed that the title to the property passed to him when it was struck off at the sale, that there was a construe-tire delivery to the sheriff, and the property was left with him to be delivered upon a subsequent occasion, it follows that the sheriff was a bailee; that he represented the appellant in the former action and held the amount paid in satisfaction of the judgment recovered therein in trust for him.

Under such circumstances there can be no doubt that the judgment bars this action as effectively as though the fcirmer action had been brought directly against the plaintiff herein. As was said by .the court, in Baird v. Daly (57 N. Y. 245) : “A recovery,, either by the bailor or the bailee, is a bar to an action by the other party, (Green v. Clarke, 12 N. Y. 343.) ”

The appeal from the order denying the motion for a retaxation of costs presents the question whether the defendants, who sepa- ^ rately appeared and answered, were properly permitted to -tax separate bills of costs. The rule, in an action at law, is that defendants appearing and answering by separate attorneys are' entitled to separate bills of costs, and that this right can only be defeated by showing that the parties are united in interest or collusively appeared by separate attorneys in bad faith for the purpose of enhancing the costs. (Williams v. Cassady, 22 Hun, 182.)

Ho fact is stated in the affidavits submitted which justify the conclusion that the separate appearances were collusive or for the purpose. of enabling the defendants to tax moré than one bill of costs. ■ They were not partners and were under no obligations either in law or fair dealing to unite in their defense, and, therefore, are entitled to separate bills.

Whether this action should be regarded as difficult arid extraordinary, within the meaning of section 3253 of the Code, was a . question addressed to the discretion of the trial court, and as was said in Bryon v. Durrie (6 Abb. N. C. 140): The determination-of the question usually involves so many considerations which are addressed to the discretion of the judge, that the appellate court rarely interferes.”

We think there was no abuse of discretion in the present case, and that the order denying retaxation, as well as the judgment herein, should be affirmed, with costs.

Judgment and orders unanimously affirmed, with costs.  