under the direction of R. F., the referee heretofore appointed], upon the condition that the defendant Y. Z. [within days from the entry of this order] deliver to the plaintiff a good and sufficient bond to indemnify him against any deficiency upon the resale, and upon the further condition that the said defendant pay to M. N., the purchaser at said former sale, the sum of dollars, to cover the expenses of examining the title of said property, auctioneer's fees and interest upon his deposit paid to the referee. FORMS NOS. 2254-2255.— STATEMENTS SUITABLE TO INSERT OR SUBSTITUTE IN FOREGOING FORM. FORM No. 2254. Another Form.32 That the sale be set aside on condition that the defendant pay to M. N., the purchaser, upon demand, his costs and expenses at-. tending the purchase, which are hereby fixed and allowed at dollars, together with dollars costs of attending this motion. And it is further ORDERED, that if the said condition be complied with, the plaintiff be at liberty to cause the mortgaged premises to be again exposed for sale by the same referee, and according to the directions in the judgment in this action, and that the costs and expenses of the former notice and sale, on the part of the plaintiff, to be ascertained and declared by said referee in his report of such second sale, be included in the costs of this action, and be chargeable, with the other costs of this action, upon the mortgaged premises; and that a copy of this order be forthwith served on the attorney for the plaintiff, and also on the purchaser or his counsel. FORM No. 2255. Another Form; for indemnifying purchaser. And it is further ordered that if there shall not be sufficient moneys in the hands of said referee to pay said several sums, that then the parties, plaintiff and defendant, in this action, liable therefor, do pay to said J. L. [or, his attorney] the difference between the amount in the hands of said referee, properly applicable to the payment of the aforesaid sums, and the amounts hereinbefore directed to be paid by said referee to said J. L. 32 This Form is adapted from Williamson v. Dale, 3 Johns. Ch. 290. In a case where the purchaser has paid the purchase-money, and the land has been conveyed or mortgaged, the order should be framed to pro tect the purchasers and subsequent mortgagees, and insure the application of the proceeds to the payment of the moneys advanced by them; and to that end the purchase-money upon such sales should be held, and not dis FORM No. 2256. Bond required as condition of ordering resale.33 [Penal clause as usual; see Form 35, Volume I, p. 32.] day of Whereas, at a Special Term of the Supreme Court of the State of New York, held at the city hall, in the city of New York, on the 19 an order was duly entered in the above-entitled cause, setting aside the sale of the premises heretofore had under the judgment in said cause, and described in the complaint in this action; and ordering a resale of the same, upon the defendant filing a bond with sureties, to be approved by a justice of the said court, that at least the sum of dollars, and the expenses of a resale, shall be bid by a bona fide bidder at said resale: Now, the condition of this obligation is such that if, on said resale, there shall be a bona fide bid of dollars, and in addition thereto of a sum sufficient to pay the expense of said resale, and such bidder shall then and there, if the property is struck down to him, complete his bid as required by the terms of said resale, then this obligation to be void; otherIwise to be and remain in full force and virtue. In presence of [Witness.] [Signatures and seals.] [Acknowledgment or proof; see Form 822.] [Affidavits of sufficiency.] FORM No. 2257. Affidavit on the part of purchaser to move to be discharged.34 [Title of court and action.] of day M. N., being duly sworn, says: That on or about the 19, the property described in the judgment in the above-entitled action was struck down to me at public auction for the price of dollars at the sale held by R. F., Esq., the tributed, until the further order of the court, and with leave to apply for further directions. Gould v. Gager, 18 Abb. Pr. 32, 40. 33 Sustained by Murdock v. Empie, 9 Abb. Pr. 283, 285, note. 34 A purchaser at judicial sale is entitled to the court's discretion in his favor to a greater degree than if the transaction had been only between the parties. Heim r. Schwoerer, 51 Misc. 97; Haberman v. Baker, 128 N. Y. 253; Holly v. Hirsch, 135 id. 590, 598. But he is, nevertheless, required to show that there is at least a reasonable doubt as to the validity of the title. See Goodwin . Crooks, 58 App. Div. 464, 69 N. Y. Supp. 578; Platt r. Finck, 60 App. Div. 312, 70 N. Y. Supp. 74; Murphy v. Smith, 61 App. Div. 574, 70 N. Y. Supp. 786. referee appointed by the judgment herein, and that thereupon I paid to said referee dollars, being ten per cent. on the amount bid by me, and otherwise complied with the terms of sale. I then employed M. T., counselor at law, to examine the title to said property. After he had concluded such examination he reported to me that in his opinion the referee's deed in pursuance of the judgment in said action would not pass to me a good title, and one free from reasonable doubt, to said property. On the day of 19, I caused the objections, of which a copy is annexed, made by my said attorney to the title to said property, to be served upon the referee, and on the grounds thereon set forth I declined to pay the balance of the purchasemoney, although I was then able and prepared to pay the same if the title to the said property had been good, and I thereupon asked the repayment of the ten per cent. and auctioneer's and exchange-room fees paid by me, with interest, and that I be reimbursed the charges and expenses incurred by me in the examina tion of the title, which said referee refused. [State any facts necessary to substantiate objections; allege no knowledge or notice of defect at time of sale; 36 show expenses, etc., incurred.] [If order to show cause is asked, state as on p. 1172.] [Jurat.] FORM No. 2258. Order discharging the purchaser.38 [Signature.] [Title (court order) and recitals; see Form 820, p. 1174; or as in Form 2250 to the *, continuing:] ORDERED, that [said ex 35 In Conlen v. Rizer, 109 App. Div. 537, 96 N. Y. Supp. 566, the court, relieved the purchaser because of the failure of the terms of sale to give notice of restrictive covenants lessening the value of the property, as required by Code Civ. Pro., § 1678. The failure of the record to show that a deed was under seal does not of itself show that the deed was not sealed; and where the deed recited that it was given under the hand and seal of the grantor, it was held that the purchaser would not be relieved. Dana r. Jones. 91 App. Div. 496, 86 N. Y. Supp. 1000. A purchaser who in good faith has mistakenly bid for a property other than the one he thought he was buying is entitled to be relieved on indemnifying against expense of resale. Vingut v. Vingut, 17 N. Y. Supp. 159; Dunn r. Herbs, 56 Hun, 457, 10 N. Y. Supp. 34. 36 Dunlop r. Mulry, 85 App. Div. 498, 83 N. Y. Supp. 477; Stephens r. Humphreys, 73 Hun, 109, 25 N. Y. Supp. 946; aff'd, 141 N. Y. 586. 37 See Rice v. Barrett, 99 N. Y. 403; Fleming . Burnham, 100 id. 1, and cases cited. It was intimated in Totten v. Stuyvesant, 3 Edw. 500, that to discharge a purchaser for defect or omission of notice of lis pendens it should be shown that there has been some change of interest meanwhile. But this was before the present Lis Pendens Statutes. See Chapter VIII. 38 The order is appealable to the Court of Appeals, as a final order in a special proceeding. Parish v. Parish, 175 N. Y. 181. ceptions be sustained and said motion to confirm the sale be deniedor, ORDERED, that the motion of said purchaser to be discharged be and the same is hereby granted, and that] M. N., the purchaser, be and he is hereby discharged from his said purchase. And it is further ORDERED, that R. F., Esq., the referee in this action [or, the sheriff of said county], repay to said M. N. the amount paid by said M. N. to him upon the said sale. And it is further ORDERED, that the plaintiff pay to said M. N. on demand [or, within days after service of this order], [interest thereon from the time when the purchase was to have been completed, together with] his expenses of examining the title, which are hereby fixed and allowed at the sum of dollars, together with dollars cost of this motion.39 FORM No. 2259. Order denying purchaser's motion to be discharged.40 [Title (court order) and recitals according to circumstances; see Form 820, p. 1174.] ORDERED, that this motion be and it hereby is in all respects denied, with ten dollars costs of this motion to the plaintiffs. And it is further ordered that the stay granted herein by the said order to show cause be, and the same hereby is vacated, and that the said purchaser complete his purchase as of the date when his contract required him to complete," and pay the balance of his purchase-money with interest thereon12 to the referee, and the 39 The purchaser, on being discharged on account of defects in the title, is entitled to receive a return of his deposit, with interest from the time the sale was to be completed, and the expenses of investigating the title, and the costs of his motion to be discharged. Rogers v. McLean, 31 Barb. 304, 10 Abb. Pr. 306. In another case, it was directed that such costs and expenses, on being ascer tained, should be charged upon the petitioner's interest in the land, and that the purchaser have execution therefor. Matter of Cavanagh, 14 Abb. Pr. 261, note. In Coates r. Fairchild, 14 Wkly. Dig. 189, the direction to record the deed was held sufficient in that respect, and the direction to remove the encroachment, although under the circumstances of the case not required for the purchaser's protection, was proper. 40 This is a final order in a special proceeding, and, as such, appealable to the Court of Appeals. Parish v. Parish, 175 N. Y. 181. Disobedience of this order will subject the purchaser to punishment for a contempt of court. Burton v. Linn, 21 App. Div. 609, 47 N. Y. Supp. 835. Or, in case a re-sale is directed, the purchaser may be directed to pay the deficiency, and punished for his disobedience. See two Forms following, and notes. 41 Parish . Parish, 87 App. Div. 430, 84 N. Y. Supp. 506. 42 Parish v. Parish, supra. costs of this motion within ten days from service upon him of a copy of this order. 13 [May state condition, as thus:] This order is made on condition, however, that the plaintiff, before the expiration of said ten days, record the deed alleged to be in his possession from G. H. P. to B. P. F, and cause to be removed the fence of J. C. G. inclosing a portion of the premises in question at the south end thereof. Enter: [signature of judge by initials of name and title.] FORM No. 2260. Order directing re-sale, on purchaser's default, and providing for payment by him of deficiency, expenses, etc.44 [After appropriate recitals:] day of ORDERED, that the premises affected by this action and described in the decree of foreclosure and sale entered herein on the 19, be re-advertised and re-sold [by R. F., Esq., the referee named in said decree] according to the directions of said decree; and it is further ORDERED and ADJUDGED, that M. N. [the defaulting purchaser] pay to [said referee] the amount of any deficiency that there may be between the sum of dollars, for which said 19, and premises were sold to him upon their sale on the sum for which said premises are purchased on the resale thereof as hereby ordered; and that said M. N. also pay any and all costs or expenses accruing on said resale, and any taxes, water rents or assessments which have or may become liens on said premises between the date of said sale on 19 and 45 the date of resale of said premises; 5 and it is further ORDERED, that said M. N. pay to the plaintiff's attorney ten dollars costs of this motion. 43 Whether the court will order the purchaser to complete, or will order a re-sale at his expense, is largely a matter of descretion. Burton v. Linn. supra. 44 Contempt proceedings cannot be based upon this order; it will be necessary to obtain an order fixing the amount definitely, as in the next Form. See Rowley v. Feldman, 66 45 The court is not required, as matter of law, to hold the defaulting purchaser to the payment of the deficiency, and equitable considerations may intervene to warrant excusing him in whole or in part. See Leslie t. Saratoga Brewing Co., 59 App. Div. 400, 69 N. Y. Supp. 581. |