Opinion
September, 1922.
Timothy M. Griffing, for plaintiff.
Ira G. Darrin, for petitioner Julia Sasse.
This is an application why the referee in this proceeding should not be required to make and file a referee's report of the sale of the premises described in the petition; why the plaintiff should not be directed to pay to Julia Sasse, the petitioner, the sum of $56.35, with interest thereon from April 3, 1919, being the amount of taxes which became a lien against said premises on the 1st day of May, 1918, and why the plaintiff should not also be required and directed to pay to the petitioner the sum of $400.90, being the amount of a certain tax lien existing against the premises at the time of sale. The plaintiff does not oppose the motion in so far as it directs the referee to file his report, and also that the plaintiff pay the tax due May 1, 1918, with the interest. It opposes, however, the application to direct the plaintiff to pay $400.90, the amount of a tax lien existing at the time of the sale. The action was one to foreclose a mortgage. The terms of sale provided: "4th. All taxes, assessments and water rates duly confirmed and payable which, at this date, are liens or encumbrances upon said premises, will be allowed by the referee out of the purchase money, provided the purchaser shall, previous to the delivery of the deed, produce to the referee proof of such liens, and duplicate receipts for the payment thereof." That was at variance with the provisions of the judgment which directed the referee to pay from the proceeds of the sale, as provided in section 1676 of the Code of Civil Procedure, the taxes, assessments, water rents and other charges, etc. The property was bid in by one Henry L. Carr, who thereafter assigned his bid to the petitioner. The mere fact that the petitioner assented to the terms of sale by agreeing to produce proof of liens and duplicate receipts did not absolve the referee from making the sale in accordance with the judgment. See Weseman v. Wingrove, 85 N.Y. 353; Easton v. Pickersgill, 55 id. 310. While it is doubtless true that the referee had no knowledge of the existence of the lien in question, it seems from a reading of the papers that either the plaintiff or its attorney had such knowledge. Plaintiff having received the moneys which, in part, were applicable towards the satisfaction of the lien in order to carry out the terms of the judgment, it should repay those to the petitioner. The motion is granted.
Ordered accordingly.