
    Benjamin F. Angel, Respondent, v. Alexander S. Clark and Margaret Clark, Appellants, Impleaded with Others. William H. Milliman, Purchaser, Respondent.
    
      A sale in foreclosure—vacated where the referee sold in violation of his promise to adjourn the sale —protection of the rights of the purchaser.
    
    A sale in an action brought to foreclose a mortgage should be controlled solely by the referee appointed to conduct it; and where it appeared that the referee, after informing the attorney for the defendants that the sale would be adjourned, then proceeded, at the instance of 'the,plaintiff’s attorney, and in violation of his promise, to sell the property, the, court set the sale aside upon proof that it prejudiced the rights of the defendants, and appointed a referee to take an account of the purchaser’s payments and expenditures upon, and his receipts from, the property, and directed that any balance found to be due to the purchaser be paid to him from the proceeds of the resale, before pay- . ment of the mortgage.
    • Appeal by the defendants, Alexander S. Clark and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Livingston on the 7th day of June, 1897, denying their motion to reopen a sale of mortgaged premises.
    
      Charles J. Bissell, for the appellants.
    
      John H. Coyne, for the respondent Milliman.
    . John B. Abbott, for the respondent Angel.
   Per Curiam :

A judgment of forclosure and sale of mortgaged premises consisting of .two parcels of. land, one of which was owned by. defendant Alexander S. Clark and the other by defendant Margaret Clark, ■\yas duly made .and entered in this action. A referee was appointed therein for the purpose of making such sale. The referee duly advertised the premises for sale; owing to the necessity of a modification of the judgment in certain particulars, the sale was adjourned to the 27th day of March, 1897, at ten o’clock in the forenoon. On-the twenty-sixth day of March the attorney who was then acting for the defendants deemed it advisable and necessary in the interest of these defendants that the sale should be postponed for about ten days, and on the last-named day made application to the referee for such an adjournment. It appears from the record that such request was reasonable, the referee so considered it and admits that he informed defendants’ attorney that the sale would be postponed as requested. Defendants were duly notified that such postponement had been granted.

Notwithstanding the fact that, the referee admits that he informed the attorney for the defendants that the sale would be adjourned and knew that the attorney relied upon the statement, the referee proceeded to and did sell the premises the next day, at the time advertised for such sale.

The attorney for defendants resided at Rochester. The sale took place at Geneseo, some twenty miles away. The attorney had no-intimation that the referee would break his faith with the attorney until about the hour of the sale, when he was informed by telephone that the referee would proceed with the sale. This information was- given, not by the referee, but by the plaintiff’s attorney, who seems to have taken the entire- management of the sale, and of’ the referee. The referee offers nothing - which can be received as an excuse for his conduct. He says that defendant Alexander Olark was present before the sale took place and “ repeatedly asked Mr. Angel to adjourn the sale, which he refused to do.” He: further states in his affidavit that just previous to his offering the premises for sale either Angel dr Abbott repeated the statement that they would not adjourn the sale.” This presents no excuse for the -referee. He seems to have acted upon the supposition that, the plaintiff and his attorney were empowered to conduct .the sale,, and that the power of proceeding therewith, or of adjourning the sale, was left entirely within their discretion.

The power to make this sale was intrusted solely to this referee. The court confided to him the authority to carry out its judgment. He was appointed referee for the purpose of making and conducting the sale therein authorized in an open, honest and impartial manner and to the protection of the interests of all the parties interested in the property or affected by such sale. He was empowered to grant a reasonable adjournment of such sale if, in the' exercise of a sound judgment and wise discretion, he deemed it advisable to the protection of the rights of interested parties.

A case was presented to him for the exercise of that judgment and discretion ; he recognized the reasonableness of the request and consented thereto, but failed to keep his agreement, and by reason thereof, as clearly appears from the record, the rights of the defendants were prejudiced. The court ought not to countenance such acts, but should afford ready relief upon the presentation of such a condition of affairs.

The purchaser at the sale was not a party to the action, but is a party to this proceeding, and his rights should be protected.

A referee should be appointed to take testimony as to the purchaser’s payments and expenditures, and also his receipts, income and the advantages which he has derived from the premises purchased. by him. Upon the coming in and confirmation of the referee’s report, the amounts to which the purchaser is found to be entitled should be ordered paid out of the avails of the sale prior to the payment of the first mortgage.

The order appealed from is reversed, with ten dollars costs and disbursements; the motion to reopen the sale is granted, with ten dollars costs; the sale is vacated and a reference ordered* to L. R. Doty, Esq., an attorney and counselor at law, of Geneseo, N. Y., to take testimony as to the purchaser’s payments and expenditures, and his receipts, income and advantages derived from the premises. Upon the coming in and confirmation of the referee’s report, the balance found due to the purchaser shall be paid out of the avails of the resale prior to the payment of the first mortgage.

Order reversed, with ten dollars costs and disbursements, and motion to open the sale granted, with ten dollars costs, such costs and disbursements to be paid out of the proceeds of the sale. The sale is vacated and a resale ordered. A reference is ordered tó .Lockwood R. Doty, Esq., of. Geneseo, Livingston county, N. Y., tó take testimony as to the purchaser’s payments and expenditures, and also his receipts, income and advantages which he has derived from the sale. Upon the coming in and confirmation of the referee’s report, the balance, if any, found due to the purchaser, shall be paid out of the avails of the sale, prior to the payment of the first mortgage.  