
    Mrs. Frank Leslie, Plaintiff, v. The Saratoga Brewing Company and Others, Defendants. Daniel Gaffey, Appellant; Adam Neidlinger and Others, Respondents.
    
      Mortgage foreclosure sale — a bidder unable to pay down ten per cent in cash excused, ■ although the property was resold for less than his bid.
    
    At a mortgage foreclosure sale the mortgaged premises were struck down to the president of a corporation, the mortgagor, who was acting in its interest, for $31,600. He did not have enough money to pay the ten per cent required by the terms of sale, but offered to give a check or draft for that- amount. The referee, at the instance of the plaintiff’s attorney, refused to accept either, or to adjourn the sale for a day, in' order to enable the president of the corporation to procure the money. Thereupon the latter offered to withdraw his bid and to allow the premises to be struck down to a subsequent lienor who had bid $31,500, but the subsequent lienor rejected the offer, saying that he then expected to purchase the premises at a much lower figure. The premises were • then resold and were struck down to a third party for $18,700, the subsequent lienor having bid a slightly lower amount.
    A surplus was realized on the resale, but notwithstanding this, the court, upon the motion of the subsequent lienor, made an order requiring the president of the mortgagor to pay the referee the difference between the amount bid by him and the amount realized on the resale.
    There was no evidence that the president of the'mortgagor did not make the bid in good faith, or was not pecuniarily responsible, and his attorney swore that it was a frequent practice in the county in which the sale was had to give the bidder time in which to procúre the ten per cent.
    
      Held, that the order should be reversed;
    That the circumstances did not require the court to enforce so severe a forfeiture against the president of the corporation for the sole benefit of the subsequent lienor.
    Chase, J., dissented.
    ' Appeal by the defendant, Daniel Gaffey, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the lLth day of May, 1900, directing him to pay to the referee who made a sale pursuant to a judgment of foreclosure in the action a sum of money bid by him upon such sale.
    
      John T. Norton, for Daniel Gaffey, appellant.
    
      James MacGregor Smith and J. Newton Fiero, for Neidlinger & Sons, respondents.
    
      Fletcher W. Battershall, for Balthaser Baker, respondent.
   Per Curiam :

By the bid which the appellant, Daniel Gaffey, made, he offered to purchase the mortgaged premises at' the price of $21,600, and, although the referee accepted that offer, it was not a contract which the court was obligated to complete or enforce. .If to the court it appeared that justice to any of the parties interested required it, the sale, even though Gaffey had paid the ten per cent required, might have been vacated and a new one ordered.

The circumstances under which Gaffey made the bid in question do not indicate any intent on his part to trifle with the court. He bid $21,600, and he swears that, in his judgment, the premises were worth more than that sum. We do not discover in the record that such statement is anywhere contradicted. Neidlinger & Sons, who, as subsequent lienors to the mortgage being foreclosed, claimed to be entitled to all the surplus the premises would produce, bid $21,500, but allowed them to be struck off to Gaffey at his bid of $100 more. The sale was had in the village of Saratoga Springs, and Gaffey resided in the city of Troy. It seems that he had not with him money sufficient to pay the ten per cent required by the terms of sale to be then paid down, but he offered to give his own check for the same or a draft upon his father for that amount. At the instance of the plaintiff’s attorney the referee refused to accept either, and demanded cash or such paper as the plaintiff’s attorney would approve.

It does not' appear that Gaffey was not pecuniarily responsible for that amount, nor that his check, if given, would not have been paid. He also asked that the sale be adjourned one day that he might procure the ten per cent, which was also denied. Upon it appearing that Gaffey was not then in a condition to pay the ten per cent the referee at once called the bidders back and again put the premises up for sale. It appears that all who were present when the premises were struck off to Gaffey were present at this second sale. Gaffey then and there offered to withdraw his bid and allow the premises to be. struck off to Neidlinger & Sons on their bid of $21,500. They, however, promptly refused, saying that they now expected to get the premises at a much lower figure than that.

The premises were thereupon put up and again sold, and struck off to John T. Norton for the sum of $18,700, the said Neidlinger & Sons having bidden a sum slightly below that amount. On the first sale, Gaffey, who was the president of the mortgagor, was bidding in its interest, and he and Neidlinger & Sons were the only parties who did bid, except the plaintiff’s attorney bid enough to cover the sum due upon the mortgage and for costs. The sum of $18,700, procured by the referee upon the last sale, was sufficient to pay all the mortgage debt and costs and left a surplus in his hands of some $6,607.48.

McLean, the attorney who bid for and was advising Gaffey, swears that he had attended many mortgage sales in that county, and that it was frequently the practice to give time to the bidder to procure the ten per cent required to be paid down; and it would seem that his client, Gaffey, had acted upon this occasion upon that theory.

The order from which this appeal is taken directs that Gaffey pay the difference between the $21,600, bid by him, and the $18,700, realized upon the second sale, being the sum of $2,900, to the referee: It is made upon the motion of Neidlinger & Sons. Evidently, it is an attempt on their part to secure such sum as surplus money arising upon the sale.

We are of the opinion that the circumstances of this case, as above detailed, do not require the court to enforce so severe a forfeiture against Gaffey for their sole benefit. It is plain that his conduct has not, in fact, worked any such injury to their interests. They refused to take the premises at their own bid of $21,500, with the avowed purpose of enforcing from Gaffey any deficiency that should arise upon the resale. They also objected to giving him a day’s time to procure the $2,160 and so secure to the mortgagor the benefit of the purchase, but now seek to procure the sum of- $2,900 from him by way .of a forfeiture for not completing such purchase. The contest is evidently between. Gaffey, representing the mortgagor, and Neidlinger & Sons, its creditor; and, as between them, there is no equity that requires the enforcement of such a penalty. This conclusion does not in the least sustain any willful attempt to bid without intending to purchase or in any manner to trifle or interfere with the orderly progress of a judicial sale. It furnishes no precedent for any such case. In our opinion this record fails to show that Gaffey was acting with any such intent On the contrary, we believe he bid only what he believed and intended the mortgagor should and would pay and failed to perform only because he did not understand that he must have on hand in cash a certain per cent of the purchase price. His conduct was not in contempt of the court, nor did it work any injury to Neidlinger & Sons. Hence we conclude that the order should be reversed.

All concurred, except Chase, J., dissenting in a memorandum.

Chase, J. (dissenting):

So far as appears in the record, defendant Gaffey bid on the property without having made any definite .arrangement that would justify a prudent man in assuming that he could comply with the terms of sale. The talk he had with his father was indefinite and uncertain. The talk' among the directors of the brewing company about Gaffey protecting their interests at the sale does not seem to have been backed by any plan for raising the money to make the purchase. The best that can be said of Gaffey’s position is that when he bid on the property he hoped to be able to raise money subsequent to the property being struck down to him with which to pay the amount of the bid. There was nothing done at the sale to mislead a bidder, and the appellant bid on the property with full knowledge of the terms of sale. I am unwilling to hold that such a defaulting bidder should escape entirely the consequences of his bid.

The order should be modified by striking out the ordering' part thereof and in place thereof directing that a judgment be entered against the defendant Daniel Gaffey for $2,900 in favor of the defendant which would have been entitled to receive the same if it had been paid to the referee by the bidder and was now surplus in the custody of the court, and also directing a further hearing at Special Term, on the usual notice, to determine which defendant is entitled to such judgment.

Order reversed, without costs.  