
    ROGERS a. McLEAN.
    
      Supreme Court, First District;
    
    
      Special Term, May, 1860.
    Stay of Proceedings on Appeal from Order vacating Judicial Sale.
    On appeal from an order discharging the purchaser at a judicial sale, and directing his deposit to be repaid, the court refused to consider the merits of the order appealed from; but the purchaser not being shown to be irresponsible, tbe court refused to stay the repayment of his deposit.
    Motion for a stay of proceedings.
   Bonney, J.

—At a referee’s sale at auction, under judgment in the above action, on 23d November, 1859, Joseph Richardson purchased the premises on Broadway, near Canal-street, for $80,250, and, pursuant to the terms of sale, paid, to the referee ten per cent, of the amount bid ($8025). The sale was to be closed on 22d December. Said purchaser refused to complete his purchase, under the advice of counsel, for alleged defects in the title proposed to be given, and on 24th January, stated such objections in writing, and demanded repayment of said ten per cent., with interest, and payment of expenses incurred by him in relation to the purchase. This demand was not complied with ; and the purchaser, on notice to said referee, and the parties interested in the sale, applied to the court by petition, to be discharged from his purchase, and for repayment of said ten per cent, and other relief. The motion was heard by Mr. Justice Allen, who, on 12th March, made an order that the prayer of the petitioner be granted; that the memorandum of the purchase be surrendered ; that the referee repay to the purchaser said $8025 ; and that the receiver in the action pay said purchaser the interest on said $8025, from the time when it was paid to the referee, and also pay him one hundred dollars for expenses of examining the title to the premises, and fifty dollars costs of the motion."

From this order, the plaintiffs in this action have appealed, and now move to stay all proceedings on said order until the decision of the general term upon such appeal. The motion has been elaborately argued, and the granting of a stay is pressed upon the ground that it is clearly shown from the papers referred to on the motion (which are very voluminous), that the objections taken by the purchaser to said title cannot be sustained, and that in the order made on the petition there is error. The questions raised in relation to the title are important, and'to pass upon them understandingly would require elaborate examination. They were carefully considered by Judge Allen, as appears from his opinion on deciding the motion before him ; and it is neither necessary nor proper, that I should now express an opinion as to the correctness of his conclusions. The appeal does not of itself stay proceedings on the order. The presumption is that the order is correct, and under it the petitioner is entitled to the relief thereby granted. There is no evidence that the petitioner is not responsible and likely to remain so, and able to perform his contract of purchase at any time, if he should be adjudged to do so. If the money ($8025) remains in the hands of the referee, there must necessarily be a loss of interest to be borne by some of the parties, which seems to me quite unnecessary. It is said, indeed, that the referee has deposited the money in the United States Trust Company, at four per cent, interest; but this only partially avoids the loss. The use of so large a sum of money may very well be worth more than even seven per cent, interest to the petitioner ; and, in my opinion, no good reason is now shown for keeping it from him. The payment of the interest, costs, and expenses by the receiver, stands, perhaps, on somewhat different grounds; and as further costs are to be incurred, that payment may, with propriety, be stayed until the decision of the appeal; and the surrender of the memorandum of purchase may also very properly be stayed until a final decision is had in the matter. Proceedings may, therefore, be stayed on so much of the order appealed from as directs the surrender of the memorandum of purchase, and the payment, by the receiver, in this action, of the interest on said sum of $8025, and of the expenses ($100), and costs ($50) of the petitioner. As to the other part of the order, 'the motion for a stay is denied. Ten dollars costs of this motion to be costs of the proceedings on the petition, and abide the event of such proceedings. 
      
       The decision is reported, Ante, 306.
     