Lincoln Trust Co. v. Fullaytar , 190 N.Y.S. 630 ( 1921 )

Smith, J.:

The appellants are the bidder, The Forty-fifth Street Realty Company, and the Neumont Realty Corporation, the owner of the equity of redemption, one of the defendants, which will hereinafter be called, respectively, the bidder and the owner.

The premises which were being sold on the foreclosure sale herein are Nos. 51 and 53 West Forty-fifth street, New York city, and consist of a parcel thirty-seven feet front and rear. Immediately adjoining this parcel the owner also had title to No. 49, being eighteen feet, nine inches front and rear. Upon these two parcels the owner had obtained plans to erect a twelve-story building and these plans had been filed and approved by the building department before the commencement of this action.

After this action was commenced arrangements were made between the owner and the bidder by which if an adjournment of the sale could not be obtained, the bidder should bid in the property for the owner and itself and should protect a second mortgage of $20,000 on the premises, and by such arrangement the bidder was given an interest in said premises. When negotiations for an adjournment of the sale failed the attorney for the owner and bidder procured a certified check for $9,000 payable to the order of the Lincoln Trust Company, the plaintiff, and after tendering it to the plaintiff, in again requesting an adjournment, asked if it would be accepted on a bid on the sale. The officer of the plaintiff of whom this question was asked referred the attorney to the plaintiff’s attorneys. The attorney, Mr. Bulkley, then went to the salesroom and a few moments before the time for the sale showed the check to one of the plaintiff’s attorneys and asked if it could be used on a bid and was told, “ That’s all right. We’ll fix it up if you buy the property.”

After several bids by the attorney for the plaintiff and Mr. Bulkley for the “ bidder,” the property was struck down to the “ bidder ” for $74,000, which was sufficient to pay the plaintiff in full and leave something to be applied on the second mortgage.

The check above referred to was then tendered to the referee and it was suggested that as the check was not made out to the referee but to the plaintiff, a new check to the order of the referee be obtained, which was done, the sale in the meantime being held. On the return of Mr. Bulkley with the new check a point was raised that the check was not the check of the bidder, but was the check of Brett- & Goode Company and that it could not be taken unless the Brett & Goode Company should be substituted as bidder. This Mr. Brett, the president of the company, who was present, declined to do as he did not desire to have his company bound to complete the sale. Then Mr. Bulkley for the owner and bidder asked for a little time to procure the cash, and upon this request being refused, the premises were' resold to a Mr. McCarren who had made no bid on the first sale.

The above statement of facts is a brief summary of the facts stated in the affidavits for the moving parties which in some particulars are denied by the opposing affidavits.

The result of the action of the plaintiff’s attorneys, and of the order of the court at Special Term, is to deprive the owner of a very substantial equity in these premises and to leave it with a small parcel of land of eighteen feet and nine inches frontage. It is a well-known fact that a plot of large frontage is of greater proportionate value than a small plot and on the proofs submitted it appears reasonable that the owner has been deprived of an equity of very substantial value.

The plaintiff’s attorneys contend that at no *time did the attorney for the moving parties ask to be permitted to have a short delay to procure cash and that he apparently was unable to procure the cash after the sale had been held for some time to enable him to do so. This contention does not appear to be reasonable. The owner’s attorney had a certified check which presumptively represented the cash; the president and the treasurer of the maker of the check were present and a new check for cash could have been drawn as easily as a* new one to the order of the referee.

While the statements made by the moving parties and by the plaintiff of the occurrences at the time of the sale differ materially, those made by the moving parties appear to us the more convincing, and when it is considered that the bidder on the resale had no interest in the property and was not a bidder on the first sale, although present, and the serious consequences to the owner in case this motion is denied, the order should be reversed and the sale should be set aside and a resale ordered upon- the giving of a bond to bid at least $75,000 upon such resale. If such bond be not given the order must stand affirmed.

So ordered, with ten dollars costs and disbursements to appellant.

■ Clarke, P. J., Dowling and Greenbaum, JJ., concur; Page, J., dissents.

Order reversed and sale set aside and resale ordered upon the giving of a bond to bid at least $75,000 upon such resale; if such bond be not given, order affirmed; $10 costs and disbursements to appellants. Settle order on notice.