the

day of 19 [if modified, add: and in pursuance of a further order duly made by said court on the foot of said judgment and entered in said clerk's office on the

day of

day of 19 modifying said judgment or decree-or thus: and an order of resale, duly made by said court and entered in said clerk's office on the 19 1, I, the undersigned, the referee in said judgment named [if, as is sometimes the case, executors or trustees are directed to join, add: and we, the undersigned E. X. and T. R., trustees and plaintiffs in said action], will sell at public auction on the day of 19 , at twelve o'clock noons of that day [here name salesroom or particular place of sale, for instance], at the front door of the Westchester county court house, situate in White Plains, Westchester county, New York [by M. N., auctioneer] the premises directed by said judgment to be sold, and therein described as follows: [here insert full description, which will be governed by the judgment.]88

[Date.]

[Name and office address of],

Plaintiff's attorney.

87

[Signature of], Referee.

[In the County of New York,89 insert:]

The following is a diagram of the property to be sold as above described:

[Diagram.]

with

19 together with costs, dis

The approximate amount of the lien or charge, to satisfy which the above described property is to be sold, is $ interest thereon from bursements and allowances amounting to $ with the expenses of the sale.

advertise as in case of a sale of real property on execution. N. Y. Code Civ. Pro., §§ 1434, 1435, 1678, and Volume I, p. 352, note, and 353, note.

Personal property may be concisely described as thus: all the personal property, assets and effects belonging to the late firm of E. & W., or to the representatives of said firm (excepting the bills receivable), including the chattels, fixtures, machinery, horses, wagons and stock of said firm and the good will of its business. This description was held sufficiently explicit in Winter v. Eckert, 93 N. Y. 367.

86 See Gen. Rule No. 62, as to time

together The approximate amount of taxes,

of sale in New York, Kings and Erie counties.

87 The place of sale in New York, Kings and Erie counties is prescribed by Gen. Rule No. 62.

88 Error or omission as to real estate is amendable. Woodhull v. Little, 102 N. Y. 165.

89 Required by Special Term Rule No. XV. An unintentional error in the diagram, or in the amount of the liens, will not affect the sale. Id. And a mistake caused by the purchaser's reliance upon the diagram will not justify the court in relieving the purchaser from his bid. Francis v. Watkins, 72 App. Div. 15, 76 N. Y. Supp. 106.

assessments and other liens, which are to be allowed to the purchaser out of the purchase money, or paid by the referee, is , with interest.90

$

Dated

19 .

[Signature],

Referee.

[Notice of adjournment will be by adding:] The sale of the above-described property is hereby adjourned until

day of

19, at the same hour and place.91 [Date, signatures, and address, as above.]*2

FORM No. 2229.

Admission of service of notice of sale.93

[Paste here a copy of the advertisement,

with title of court and action.]

the

Due and timely service of a copy of the foregoing notice of sale in this action is admitted this

[Date.]

day of

19 .

[Title of court and action.]

[Venue.]

A. B., being duly sworn, says:

I. That he is the above-named [defendant] in this action [or state relation to the cause].

II. That this action was brought to foreclose a certain mortgage; that thereafter a judgment of foreclosure and sale herein was entered in the office of the clerk of county on the day of

19 .

90 These clauses would not be appropriate in partition.

91 The referee has power to adjourn the sale.

The adjournment should be advertised (Code Civ. Pro., § 1678), but failure so to do is a mere irregularity, which only an interested party may invoke. Bechstein v. Schultz, 120 N. Y. 168.

92 No allowance can be made for advertising in excess of the statute requirement, in the absence of an agreement of the parties therefor. Foren v. Straus, 65 App. Div. 460, 73 N. Y. Supp. 64.

93 While the parties who have ap

peared may have no absolute right to service upon their attorneys, of a notice of sale (Collins v. McArthur, 32 Misc. 538, 67 N. Y. Supp. 460, 8 Anno. Cas. 357), it is the uniform practice to serve such notice (Eidlitz v. Doctor, 24 Misc. 209, 53 N. Y. Supp. 525), and an omission so to do is ground for ordering a resale if a party swears that he did not know of the time of sale (Eidlitz v. Doctor, supra).

94 At least two days notice is necessary upon motion to stay sale under judgment in partition or foreclosure. Asinari v. Volkening, 2 Abb. N. C. 454; N. Y. Gen. Rule No. 67.

III. That by said judgment B. C., Esq., was appointed referee to sell the premises therein decreed to be sold, according to law and the practice of this court, and that in pursuance thereof the said referee has duly advertised the said premises to be sold at auction at the town [city] of

day of

in the
19

on the

IV. That [state grounds upon which a stay is desired]. [If order to show cause is asked, state as on p. 1172.]

[Jurat.]

FORM No. 2231.

Notice of motion to stay sale.

[Signature.]

[Move the court, or a judge see Forms Nos. 815 and 818 -for an order] staying the sale of the premises decreed to be sold herein until the day of

for such other [etc.].

19

FORM No. 2232.

[or, for

days], and

Order staying sale.

[Name of] Court [or if a court order]

[Title of action.]

At a Special Term [etc., as in Form 820, p. 1174].

On reading and filing the annexed affidavit of A. B., and it satisfactorily appearing to me [by the affidavit of

here

unto annexed] that [more than] two days' notice of this motion was duly served upon Esq., the plaintiff's attorney; Now, and A. T., Esq., [or, no one appearing], in opposition:

after hearing T. Z., Esq., of counsel for of counsel for

ORDERED, that the sale of the premises adjudged to be sold at public auction in this action be and the same hereby is stayed until days], and that a copy of this order , Esq., the referee [or,

[or, for

be duly served forthwith upon
sheriff] appointed herein to conduct said sale.

[Authentication as in Form No. 818.]

FORM No. 2233.

Notice of adjournment95 or countermand, etc., for service.
[Paste here a copy of the new advertisement.]

Gentlemen:

19

The sale above noticed was adjourned to the

day of

as above stated [or if countermanded: The notice of sale.

95 Pier v. Storm, 37 Wis. 247; Ackley . Parmenter, 98 N. Y. 425. As to publication, see Bechstein v.

Schultz, 19 Abb. N. C. 168, 45 Hun, 191; Sanborn v. Potter, 35 Minn. 449, 29 N. W. Rep. 64.

was countermanded, and property

readvertised as stated in the above notice].

[Date, signature, and addresses, as on p. 1171.]
[Admission, as in Form No. 2229.]

FORM No. 2234.

Affidavit of publication.96

[Here paste on a copy of the advertisement,

with title of court and action.]

That he is the printer [or, the publisher-or, the foreman -or, the principal clerk or, the only clerk of the printer or, of the publisher] of the , a newspaper published at in this State; that the advertisement hereto annexed has been regularly published in the said newspaper three weeks successively, commencing on the 19 [and also on day of sale- viz., on the

FORM No. 2235.

Terms of sale.98

[Paste here a copy of the advertisement,

with title of court and action.]

The premises described in the annexed advertisement of sale will be sold under the direction of R. F. [referee], upon the following terms:

1st. Ten per cent. of the purchase-money of said premises is required to be paid to the said [referee], at the time and place of sale, for which his receipt will be given. [As to mortgage, see Form No. 2236 (below).]

2d. The residue of said purchase-money is required to be paid to the said [referee] at his office, No. street, in the [city of New York], on the1 19 , [at o'clock, .,] when the said referee's deed will be ready for delivery.

day of

3d. The said [referee] is not required to send any notice to the purchaser; and if the purchaser does not call at the time and place above specified to receive his deed, he will be charged with interest thereafter on the whole amount of his purchase, unless the said referee shall deem it proper to extend the time for the completion of said purchase.2

4th. All taxes, assessments and water rates,3 duly confirmed and payable, which at the time of sale are liens or incumbrances upon said premises [and moneys necessary to redeem the property sold from any sales for unpaid taxes, assessments or water rates, which have not then apparently become absolute3], will be allowed by the said referee out of the purchase-money, provided the purchaser shall, previous to the delivery of the deed, produce to the said referee proof of such liens [and redemptions], and duplicate receipts for the payment thereof.

5th. The purchaser of said premises, or any portion thereof, will be required, at the time and place of sale, sign a memorandum

directed by the judgment to be sold, designate it accordingly here, if not so expressed in the notice.

1 Usually thirty days. The referee may, for cause shown, subsequently adjourn the time for completion of the purchase. Moir v. Flood, 66 App. Div. 544, 73 N. Y. Supp. 364. As to whether interest is chargeable on the unpaid purchase money, see Grabfelder v. Tallman, 36 Misc. 247, 73 N. Y. Supp. 282.

2 Under such terms a purchaser who wholly failed to complete his purchase, so that a resale became necessary, was held liable for the entire deficiency on the resale, to the payment of which the referee might apply his deposit; and not merely liable for interest on his bid, as that

was the penalty provided in case he eventually completed his purchase at a later date than that specified in the terms of sale. Chase v. Chase, 15 Abb. N. C. 91; aff'd without opinion at General Term. Compare Chancellor v. Gummed, 25 Am. L. Reg. (N. S.) 147.

3 This clause ought to follow the directions of the judgment if that directs differently as to incumbrances.

4 This means the time of the auction sale, not the passing of the title. Ainslie v. Hicks, 13 App. Div. 388, 43 N. Y. Supp. 47; aff'd, 153 N. Y.

643.

5 N. Y. Code Civ. Pro., § 1676.

6 As to the referee's duty, see Hotchkiss v. Clifton Air Cure, 2 Abb. Ct. App. Dec. 406; People ex rel. Day r.