Brighton Heights Development Co. v. Interboro Home Builders Co.

Crane, J. The plaintiff brought these two actions to foreclose mortgages upon real estate situated in the county of Richmond, which resulted in final judgment appointing Samuel H. Evins referee to sell. The referee thereupon advertised the property to be sold on the 16th day of April, 1914, at which time the property involved in action number two was sold to the plaintiff over incumbrances for $i,400 and the property in action number three to the plaintiff for $250 over incumbrances.. The plaintiff signed the memorandum of sale but did not pay the ten per cent, deposit as that had been waived by its attorney. Title was to [226] close on April 30,1914, but the plaintiff has failed and refused to complete the purchase. This motion is now made by the referee for instruction in the matter and for such relief regarding his disbursements and fees as may seem proper. The attitude of the purchaser is that, being the plaintiff in the case, the referee must take his instructions, and that he is not obliged to take title until he gets ready. With this I cannot agree. The fact that the plaintiff was the purchaser at the judicial sale gives him no other or further rights than a stranger who had bid in. A purchaser at a judicial sale subjects himself to the jurisdiction of the court as to matters incidental to such sale. Miller v. Collyer, 36 Barb. 250; Requa v. Rea, 2 Paige, 339; Cazet v. Hubbell, 36 N. Y. 676. As said of the bid in Rowley v. Feldman, 13 N. Y. Ann. Gas. 173: “ It was a mere offer to or. undertaking with the court through the referee and the failure to perform is a breach of duty to the court which the court alone can redress or punish. * * * Those bidding upon judicial sales must be prepared to perform for otherwise their act is an unwarranted interference with judicial proceedings.” The plaintiff is bound to take title and pay the referee his fees and expenses. The fees of the referee upon the sale in action number two are three per cent, upon the first two hundred and fifty dollars, two per cent, upon the balance, two dollars for drawing the deed and two dollars for advertising the property, which makes a total of thirty-four dollars and fifty cents. As the plaintiff has bid in the property and there is no money t.o distribute the referee is not entitled to any commissions under section 3297 of the Code. As to action number three where the price bid was two hundred and fifty dollars, the referee’s fee is three per cent, plus the two dollars for drawing deed and [227] two dollars for advertising the property, or a total of eleven dollars and fifty cents. This court directs that the referee enter an order compelling the plaintiff to complete his purchase within ten days by paying these amounts, with expenses, and taking his deed, and providing that upon his failure so to do application may be made to the court to punish him for contempt. Ordered accordingly.