
    RAWOLLE et al. v. KALBFLEISCH et al.
    (Supreme Court, Appellate Term.
    October 27, 1905.)
    Receivebs—Setting Aside Sales—Interest oe Debtob.
    The debtor has an interest authorizing his moving the court to set aside "the sale by his receiver, though intervening the sale and motion the property was sold under a mortgage given by him, where he disputes the validity of such mortgage sale.
    Appeal from City Court- of New York, Special Term.
    In the matter of proceedings supplementary to execution under judgment in favor of Frederick Rawolle and others against Edward L. Kalbfieisch and another. From an order denying a motion to vacate an order, made at the instance of Edward L. Kalbfieisch, Jr., judgment debtor, setting aside a sale made to John C. Hamilton by the receiver of said debtor, said Hamilton appeals.
    Affirmed.
    See 94 N. Y. Supp. 16.
    
      Argued before SCOTT, P. J., and BISCHOFF and FITZGERALD, JJ.
    Otto Horwitz, for appellants.
    Yorke Allen, for respondents.
   BISCHOFF, J.

A sale of the judgment debtor’s interest in a certain estate having been set aside for irregularities in the proceedings and for inadequacy in the price realized, this motion was made to vacate the order setting aside the sale; the ground of the application being that the judgment debtor, when seeking that order, had no longer any interest in the fund in question, a fact which he did not then disclose.

It is not disputed that, intervening the date of the sale and of the motion to set it aside, the judgment debtor’s interest in this fund had been sold at public auction upon foreclosure of a mortgage made by the judgment debtor to one Kenyon; but it also appears that the validity of this sale is in dispute, and that the judgment debtor, claiming in disaffirmance of that sale, still asserts an interest in the subject-matter. The merits of the dispute with regard to this later sale, as between the parties to it, could not well be determined upon the present motion. It sufficed that there was an apparently bona fide controversy, and this gave the judgment debtor an actual interest in the subject-matter of the earlier sale; for, with the sacrifice of his interest then, if permitted, he would have lost the benefits to accrue to him, should he establish his asserted, equities as against the sale under the Kenyon mortgage. The new matter upon which the motion to vacate the order setting aside the receiver’s sale was based did not, therefore, call for the granting of the application, since the standing of the judgment debtor to invoke the court’s action, depending, as it did, simply upon his possession of some interest to be protected, was not rendered infirm.

Order affirmed, with $10 costs and disbursements. All concur.  