John Goodell v. Seth Harrington et al. Nancy Bruce, Purchaser, Appellant. Philip R. Clark, Respondent

John Goodell v. Seth Harrington et al. Nancy Bruce, Purchaser, Appellant. Philip R. Clark, Respondent. The question whether a re-sale shall be ordered in a foreclosure suit is discretionary with the court below ; and an order directing a re-sale is not reviewable here upon the merits. It is not requisite that a person applying for a re-sale should have a specific lien upon the mortgaged premises; the court may exercise its power at the instance of any one whose rights are aifected by the sale. (Argued March 18, 1879; decided April 1, 1879.) Appeal by Haney Bruce from order of the General Term of the Supreme Court, in the fourth judicial department, affirming an order of Special Term, which set aside a foreclosure sale herein and directed a re-sale. This action was for the foreclosure of a mortgage. Judgment of foreclosure and sale was perfected and was assigned by plaintiff to said Haney Bruce, who bid off the ■ mortgaged premises on the foreclosure sale. The application for a re-sale ivas made by one Philip R. Clark. His interest is set forth in the opinion. George W. Cothran, for appellant. Clark had no standing in court to make a motion to open the sale. (Colby on Surplus Moneys, §§ 19, 20.) Mere inadequacy of price furnishes no reason for ordering a re-sale. (1 Van Santvoord’s Eq. Pr., 558; Howell v. Mills, 53 N. Y., 326.) Henry F. Allen, for respondent. The respondent’s appli cation was addressed to the discretion of the court below, and the order of General Term is, therefore, not appealable. (Buff. Svgs. Bk. v. Newton, 23 N. Y., 160; Dows v. Cougdon, 28 id., 122; Crane v. Stiger, 58 id., 625; Hale v. Clawson, 60 id., 339, 341.) Any one whose rights are injuriously affected by a judgment or sale under it may move to set it aside, although not a party to the suit. (Kellogg v. Howell, 62 Barb., 280; Gould v. Mortimer, 26 How., 167.) The order granting are-sale was right, because Clark was prevented from attending the sale by misapprehension. (Huppock v. Conklin, 4 Sand. Ch., 582; Thompson v. Mount, 1 Barb. Ch., 607; King v. Morris, 2 Abb. Pr., 296; Gould v. Kirby, 24 How. Pr., 440; Lefevre v. Laraway, 22 Barb., 164-167; Williams v. Williams, 42 How., 411; Hale v. Clawson, 60 N. Y, 339-342; Kellogg v. Howell, 62 Barb., 280; Tripp v. Cook, 26 Wend., 145; Williamson v. Dale, 3 J. Ch., 291.) [MAJORITY — Church, Ch. J.] Church, Ch. J. The question whether a re-sale should be ordered was discretionary with the court below, and the order providing for such re-sale is not therefore upon the merits appealable to this court. (Buffalo Savings Bank v. Newton, 23 N. Y., 160; Crane v. Stiger, 58 id., 625; Hall v. Clawson, 60 id., 339.) The point presented is, that Clark, who made the application, had no such interest as entitled him to make the motion*. It appears that Clark was a judgment creditor of Haney Bruce, as executrix of Seth Harrington, that Haney Bruce claims title to a portion of the mortgaged premises by virtue of a deed executed in 1861, and was the purchaser under the mortgage sale, that an action is pending in favor of Clark to set aside the deed to Haney Bruce as fraudulent, the indebtedness to Clark having been incurred, prior to the date of the deed. I am not aware of any rule of law requiring a specific-lien upon the mortgaged premises, to enable a person to apply for a re-sale. If the deed to Haney Bruce should be set aside, the propriety of which cannot be considered upon this motion, Clark could require her to lease, sell, or mortgage the premises to pay his judgment. He is therefore interested in preserving the fund, from Avhich alone,' he can obtain satisfaction of his judgment. The Supreme Court has control OArer its own judgments, and the proceedings thereunder, and it may exercise this power at the instance of any person whose rights are injuriously affected by such proceedings. (Gould v. Mortimer, 26 How. Pr. R., 167, and cases cited; Kellogg v. Howell, 62 Barb., 280.) It is clear that the rights of Clark may be seriously affected. If his claim is sustained the land constitutes a fund from which he may obtain payment of his judgment, while if the sale should stand, he would be entirely cut off. A somewhat analogous question was considered in Rohrback v. Germania Ins. Co. (62 N. Y., 47), where we held that a legal or equitable title is not necessary to give an insurable interest to property, and that if one has a right which may be enforced against the property, and which is so connected with it that an injury thereto will result in loss to him, it is sufficient. We think that the court below had the legal power to act upon the application of Clark, and that the exercise, of the power is not rcvicwable in this court. It follows that the appeal must be dismissed. All concur. Appeal dismissed.