
    Rufus R. Wilber, Respondent, v. Clara D. Wilber, as Administratrix, etc., of Samuel G. Wilber, Deceased, Respondent. James Winchell, Appellant; Jacob D. Wurts, Receiver, etc., of Wilber Brothers, Respondent.
    Third Department,
    May 8, 1907.
    Receiver—judicial sale —resale denied.
    Inadequacy of price is not a sufficient reason for a refusal to confirm a j udicial • sale.. '
    
      'When a judicial sale by a receiver is fairly made in full compliance with the directions of the court and "on personal notice to all creditors who have presented claims, a resale should not be ordered on the application of the receiver merely because an alleged creditor, who had not presented his claim, claims to have mistaken the day of sale and to be willing to bid á larger sum.
    The receiver is not entitled to an order of resale on the ground of a mistake of another party, for relief from mistake, is granted only to the mistaken party.
    Appeal by James Winchell, the purchaser at a receiver’s sale, from an order of the Supreme Court,, made at the Ulster Special ■Term ánd entered, in the office of the clerk pf the county of Ulster on the '30th day of January, 1907, reséttling- an order entered in said clerk’s- office on the 3d day of December, 1906.
    On October 8, 1906, the receiver in this action for a partnership " dissolution and accounting sold at public auction real estate of such partnership to Jam'es Winchell, the appellant, for the sum of $1,205. Such sale was made pursuant, to a former order of the court. The property had been fairly advertised as required by. said .order. Notice of the sale had been personally given to all creditors or their attorneys who had filed claims with the receiver. A number of bidders were present at the sale and there was some competition.
    On motion to confirm the receiver’s report of sale there was presented a written offer of one Shultis to bid $2,000 for-the said property in case a resale thereof should be ordered. It was also stated orally that said Shultis had been mistaken as to the date of the sale. It is also recited in the order appealed from that he was a creditor of the partnership, but he does not seem to have presented his claim to the receiver. An order was thereupon made on the 17th of November, 1906, refusing confirmation of such sale and directing a resale' of the property. .Such order recited the stipulation of Shultis to bid $2,000 for the said premises, but contained no recital of the reason of his failure to attend the former sale. From this order an appeal was taken and the necessary papers were printed and served.
    Pending such apjieal and on January 5, 1907, on notice to all parties entitled thereto, an order was made resettling the order of November. 17, 1906, so as to have it contain a recital that said Shultis did not attend the sale of the premises on October 8, 1906, and was not represented at such sale for the reason that he understood and believed that such sale was to take place October 15, 1906, and that had it not been for such mistake on his part he would have attended the sale and bid $2,000 for the property. From this order of January 5, 1907, and from the order of November 17, 1906, as thus resettled, the purchaser appeals, and it is this appeal which is now before the court.
    
      John G. Van Etten, for the appellant.
    
      Milton O. Auóhmoody and 'Charles D. Beyo, for the respondent Jacob D. Wurts, as receiver, etc.
    
      William J). Brinnier, for the respondent Clara D. Wilber, as administratrix, etc.
   Cochrane, J.:

It has long been settled- in this State that inadequacy of price, unaccompanied by other circumstances, is an insufficient reason for a refusal to confirm a judicial sale. (American Insurance Company - v. Oakley, 9 Paige, 259; Brown v. Frost, 10 id. 243 ; Tripp v. Cook, 26 Wend. 143; March j. Badlum, 3 Sandf. Cli. 35; 51; Howell v. Mills. 53 N. Y. 322, 326-; Wesson v. Chapman,76 Hun, 592; hftiZlogg v. Howell, 62 Barb. 280 ; Léfevre v. Laraway, 22 id. 167.)

There are no circumstances in this case which justify the court’s refusal to confirm the sale to the appellant; ' Such sale was fairly made in full compliance with thé directions of the court and after ■ personal notice thereof to all the creditors who had presented their claims to the receiver. Insufficiency of assets for the payment of the creditors constitutes no reason for interfering with the sale. If that were so a large proportion of judicial sales might be set aside.. The creditors had ample opportunity to- protect themselves. Had the ' purchaser made a hard bargain he could not and should not for that reason be relieved therefrom. The converse of the proposition .is also true. If he has made a good bargain he is entitled thereto in the absence of unfairness. There is, also, in a case like this, a question' of ethics involved. The receiver .in making this 'sale represented the court, and- the court cannot tolerate the idea that its representative should repudiate a-bargain, merely for the - mercenary consideration of a subsequent opportunity for a better bargain.

The mistake of the proposed purchaser, Shultis, is offered as a reason for the- resale. No proof of such mistake has ever been made. ■ He is the only person who knows whether or not he made a mistake, and his affidavit should have been presented that the court might determiné whether the> claim of mistake was well founded and excusable. The recital in the resettled order as to his mistake is entirely unsupported by evidence.' Furthermore,, relief because of mistake is only granted to the mistaken party, and Shultis is not asking for relief because of his mistake, and is not . even a party to this motion save as' his interest as a creditor in common with the interests of the other creditors is. represented by the- receiver. . -

■ The order must be reversed, with, ten dollars costs and disburse . ments,, and the. motion to confirm the sale granted, without costs;

All concurred; Kellogg, J., in result.

Order reversed, with ten dollars, costs and disbursements, and motion to confirm sale granted, without costs.. - -  