The Buffalo Savings Bank v. Newton et al.

The Buffalo Savings Bank v. Newton et al. An order setting aside a sale in a foreclosure suit, though made on a sum- . mary application in an action: assuming the validity of the judgment: final; and affecting a substantial right, is one resting in the discretion of the court below, and is not appealable to this court. Motion to dismiss an appeal. The action was brought in th,e Supreme Court to foreclose a mortgage executed by one Frederick Q-eib to the plaintiff, on which about $480 was due at the time of the commencement of the action. The usual judgment of foreclosure and sale was obtained, which was placed in the hands of the sheriff of Erie county to be executed ; and on the 28th June, 1860, he sold the premises at public sale, and the same were purchased by Stephen M. Newton, as the highest bidder, for $658.95, and the sheriff executed to him a conveyance pursuant to the sale. A motion was made at special term, on behalf of two of the defendants, Philip A. Smith and Benjamin H. Austin, Jr., to set aside the sale, which was opposed by Newton, the purchaser: but the court made an order that the sale be set aside and the biddings reopened; that the purchaser deliver the deeds to the sheriff, and that he destroy them and pay back the money received from the purchaser ; and that the county clerk, in whose office the deeds were recorded, make a memorandum in the records, referring to the order. A resale was ordered; Smith and Austin were required to pay the costs of the motion, and to deposit $200 as security-that the lands should produce on the second sale as large a sum as they sold for on the first one. The order was affirmed at the general term, and then Newton appealed here from the order. The affidavits on which the motion was made showed that Smith and Austin were respectively interested in the equity of redemption of the mortgaged premises, and that one of them, Smith, had, pending the advertisement, paid and taken from the plaintiff an assignment of the judgment of foreclosure and of the mortgage, intending to protect himself by becoming a purchaser at the sale; but that, from forgetfulness, he had neglected to attend on the day of sale, and that no person representing the owners of the equity of redemption had attended. It was further shown that the mortgaged premises were worth $4,000. W. Dorsheimer, for Smith and Austin, insisted that an appeal would'not lie from an order of this character; and he referred to Hazelton v. Wakeman (3 How., 357), and Wakeman v. Price (3 Comst., 334). William H. Greene, for the purchaser. [MAJORITY — Denio, J.] Denio, J. The order was, no doubt, one made in the course of a summary application in an action-after judgment; and its object was not to question or impeach the judgment, in the sense of the cases in which an appeal from certain orders has been denied for that reason. Indeed, the order assumed the validity of the judgment. Moreover, the order was final, within the meaning of section 11 of the Code; and in one sense it. affected a substantial right. Nevertheless, it was not an order from which an appeal will lie to this court. It rested purely-in the discretion of the court to grant or refuse it. The point is entirely settled by the cases in this court referred to by the counsel for Smith and Austin. Hazelton v. Wakeman, was an appeal from an order granting a motion to open the biddings at a master’s sale. The appeal was dismissed, on the ground that it would not lie from an order of that character. In Wake-man v. Price, the appeal was from an order vacating a receiver’s sale of a large amount of real estate in the city of New York, which had been sold at prices far below its value. The purchaser appealed here, but the appeal was dismissed, with costs, on the ground that the granting of the order was a matter of favor, resting in the discretion of the court. The present appeal must be dismissed. All the judges concurring, Appeal dismissed.