Foster v. Roche , 2 Silv. Sup. 197 ( 1889 )

Maoomber, J.

An interlocutory judgment was entered in this action in the month of June, 1886, directing that the premises be sold by James Rearney, as referee, and that the proceeds of such sale, after paying incumbrances and expenses of the sale, be paid to the plaintiff, and to the defendant Boche as trustee. Subsequently, and on the 29th day of September, 1886, on the application of the defendant Boche, the court ordered that the purchaser or purchasers at the sale of the premises pay the amount of the purchase money into the Farmers’ Loan & Trust Company, to the credit of this action, to be drawn after two days’ notice of an application therefor, to be given by the referee to the respective attorneys, or by either of the parties to the other. Six days thereafter the premises were sold, and a portion thereof, namely, that known as No. 47 Great Jones street, was bought by Charles B. Fitzpatrick. The residue of the premises was purchased by the plaintiff. In the month of March, 1887, the parties stipulated in writing that the order made on the 29th day of September preceding, requiring the moneys to be deposited in the Farmers’ Loan & Trust Company, to the credit of this action, to be drawn out only on notice, be canceled and set aside. It appears by the findings of the referee to whom the matter was referred that the depositary and its officers never have been served with a copy of the order requiring the moneys to be deposited and drawn "out as above, arid were ignorant of the same. It appears from the facts established in the case that the purchaser discharged the whole of his duties when he cohipleted his bid by paying the money into the hands of the trust company. In the absence of a service of a copy of the amended judgment upon the trust company, and in the absence of the knowledge of its officers of the existence of such modified judgment, the moneys were withdrawn by the referee regularly, so far as either the company or the purchaser was aware. The appellant, having consented in writing, at a time before the existence of the amendment to the judgment was known, that the moneys might be drawn under the judgment as it originally stood, cannot now properly be heard to complain, if any loss ensued. The order appealed from should be affirmed, with costs and disbursements. All concur.