
    FRAZIER v. SWIMM et al.
    (Supreme Court, Appellate Division, Second Department.
    January 16, 1903.)
    3. Mortgage Sale—Setting Aside.
    Sale under foreclosure of a mortgage of $3,000 will not be set aside at the instance of a holder of a lien subject to liens of over $44,000, he having appeared and waived all notices except of sale and surplus proceedings, though he was given no notice of the sale except by publication, as required by statute, any practice of giving personal notice being based on custom; and his motion not having been made till four months after the sale, during which $6,000 of improvements had been made; and he not showing that he did not in fact have notice of the sale, but merely stating that the first intimation or knowledge he had of the sale was when he read of it and the amount realized in a daily paper; and there being no allegation of the value of the premises, but merely that the price received was inadequate; and it not being alleged that he intended to bid, or that there was any one who, on a resale, would bid.
    Appeal from special term, Kings county.
    
      Action by Charles Frazier against Clinton F. Swimm and others to foreclose a mortgage. From an order granted on motion of defendant John Graves vacating and setting aside a referee’s sale in foreclosure and annulling and canceling the referee’s deed and ordering a new sale, plaintiff appeals. Reversed.
    Argued before GOODRICH. P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    Richard T. Greene, for appellant.
    George J. O’Keefe, for respondent.
   WOODWARD, J.

The plaintiff in this action foreclosed a mortgage for $10,000, upon which there was due $3,000. The defendant Graves claimed an interest in the premises by virtue of a mechanic’s lien for $550. This lien, if it was a lien, was subject to judgment of foreclosure and prior mortgages aggregating $43,310.25, and four other liens, which brought the total prior liens upon the premises up to $44,340.05. Graves had appeared in the action, and had waived notice of all proceedings except notice of sale and surplus proceedings. It is not disputed that he had no other notice than that which is required by the statute, by publication. The other lienors who were ahead of the defendant Graves had notice of the sale, but did not intervene to protect their claims, and the property was sold on the 19th dayD of March; 1902. The plaintiff bid in the property, and there is nothing before this court to show that he did not pay all that the property was worth, in view of the liens upon it. He subsequently made extensive repairs upon the premises, at a cost of over $6,000, and then transferred the same to his son, and a new mortgage has been given to the TitR Guarantee & Trust Company on the premises. Nearly five months after the sale of the premises the defendant Graves moved the supreme court at special term to set aside the sale, and from the order granted this appeal is taken.

Mr. Graves, in his moving papers, does not show to the court that he did not in fact have notice of the sale. He merely states that “‘the first intimation or knowledge that deponent had that said premises were sold was when he read an account of the sale and the amount realized therefor in one of the daily papers,” etc. There is no allegation as to the value of the premises, and, beyond a general allegation that the price received was inadequate, there is nothing from which the court could determine that the sale did not realize, all that the property was worth. The defendant does not allege that he was intending to bid upon the property, or that he intended to have any one present who would bid, or that there is any one who would bid upon a resale of the premises. Under these circumstances it does not seem to us that it is a proper place for the exercise of the discretionary power vested in the court to set aside this sale. Mr. Graves, by appearing and waiving all notice except notice of sale and surplus proceedings, practically' admitted that he had no interest in the foreclosure except in the event of a surplus; and it may be fairly questioned whether, in waiving all notices except those of sale and surplus, the defendant does not waive all notices except such as are provided by the statute. He might waive such a notice if he saw fit, and, if all the parties in interest did likewise, the question of whether the statutory notice was published or not could not be raised. This appears to have been the construction put upon a like exception in the case of Collins v. McArthur, 32 Misc. Rep. 538, 67 N. Y. Supp. 460. While that case is not an authority for this court, it is, perhaps, tinder the facts here presented, quite as much entitled to controlling weight as that of Eidlitz v. Doctor, 24 Misc. Rep. 209, 53 N. Y. Supp. 525, relied upon by the appellant. In the case last cited it appeared from the papers that the defendant Mooney and her attorney did not know of the sale until after it had taken place, while in the case at bar it merely appears that they did not know that the sale had taken place until after it had happened. There is no suggestion that they were not aware that it was to take place. We are unable to see that the defendant has been prejudiced. There is nothing in the moving papers to indicate that the resale would result in any advantage to the defendant,, where there are so many liens prior to his own, and equities having intervened while he, with full knowledge that the sale had taken place, waits four months before discovering that he had been wronged by a lack of personal notice, which it is admitted is not required by any provision of the statute'. As was said by the court in Moore v. Shaw, 77 N. Y. 512, in dismissing an appeal: “It is sufficient that the alleged error at most is a mere irregularity, based upon a rule of practice, and not upon any positive statute, and that the defendant has not been in any way prejudiced.” In the case at bar this practice, if it is the practice, is based upon custom, and the custom is not established by anything before the court.

The order appealed from should be reversed, and the motion denied, with costs. All concur; GOODRICH, P. J., in result..  