
    
      (45 Misc. Rep. 112)
    GREGORY v. UNITED STATES FIDELITY & GUARANTY CO.
    (Supreme Court, Special Term, New York County.
    October, 1904.)
    1, Auctioneers—Liability on Bond—Arrangement with Owner—Defenses.
    An owner of personal property sold at auction had a secret agreement with the 'auctioneer that the property should not be sold, except for a bid satisfactory to the owner. It was not disputed that the property was actually sold to the highest bidder, and there was no claim that the owner made use of a “puffer” to raise the price of the property. Held, that such agreement was no defense to an action by the owner of the property on the auctioneer’s bond, given under Laws 1897, p. 776, c. 682, § 5, to recover the proceeds of the sale, which the auctioneer had not turned over to the owner.
    Action by Elisha Gregory against the United States Fidelity & Guaranty Company.
    Demurrer to answer sustained.
    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, 46 N. Y. Supp. 945. If such a "puffer” had been used by the plaintiff, I do not think the sale would have been void, but 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 1897, p. 776, c. 682, §' 5. The demurrer to the answer for insufficiency should be sustained, with costs.

Demurrer sustained, with costs.  