Stahl v. Charles
New York Supreme Court
Motion to open a sale on foreclosure and for a resale. The motion was twofold : one made by the defendant Elliott, who was joined as guarantor of the mortgage, and against whom the plaintiff was proceeding to enforce the payment of a deficiency upon the sale ; the other, a motion on behalf of the plaintiff on the ground of surprise at the sale.
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Motion to open a sale on foreclosure and for a resale. The motion was twofold : one made by the defendant Elliott, who was joined as guarantor of the mortgage, and against whom the plaintiff was proceeding to enforce the payment of a deficiency upon the sale ; the other, a motion on behalf of the plaintiff on the ground of surprise at the sale. It appeared by the affidavit of Mr. Elliott that he had no notice of the sale, and had been misled by the statement of a co-defendant that the suit had been settled. The facts in relation to the motion of the plaintiff sufficiently appear in the…
1Opinion of the CourtBirdseye, J.
—The sale in this case cannot be set aside on the ground of inadequacy of price, though that was very considerable. But I think it ought to be set aside within the cases that have been decided on the ground of surprise and misapprehension, created by the conduct of the officer who conducted the sale. (See 22 Barb., 173, and cases there cited.)
The agent of the plaintiff attended at the time and place appointed for the sale, in order to procure a postponement of the sale, and to give the sheriff conducting it directions not to allow the property to be sold to any person other than the…
2Cases cited1 opinion
- Lefevre v. LarawayNew York Supreme Court · 1856