Thomas Crane, Appellant, v. Jacob M. Stiger et al., Respondents

Thomas Crane, Appellant, v. Jacob M. Stiger et al., Respondents. (Submitted June 2, 1874; decided June 9, 1874.) An order opening a sale upon a judgment of foreclosure is one resting in the discretion of the court below, and is not appealable to this court. This discretionary power is not terminated by an order confirming the report of sale and the delivery of the .referee’s deed to the purchaser. The fact that no notice of the motion was served upon the purchaser does not invalidate the order, where he had actual notice, a.nd appeared and contested the motion. This was an appeal from an order of General Term affirming an order of Special Term, opening a sale upon foreclosure and directing a resale of the mortgaged premises. (Reported below, 2 N. Y. S. C. [T. & G], 577.) The premises were bid off by Benjamin J. Crane, a son of plaintiff. The report of sale was confirmed, a judgment for deficiency entered against defendants, Stiger and Taylor, and the referee’s deed was delivered to the purchaser. The motion to open the sale was made nearly a year thereafter. The purchaser appeared and furnished an affidavit to be used in opposing the motion. Held, as above, and appeal accordingly dismissed. Truman H. Baldwin for the appellant. William Dean for the purchaser. John H. Bergen for the respondents. [MAJORITY — Folger, J.,] Folger, J., reads for dismissal of appeal. All concur. Appeal dismissed.