Opinion
November 3, 1967
Appeal by the defendant Sampson and the purchaser Boxer from an order which denied a motion to confirm a Referee's report of sale of certain real property and from a further order denying a motion to reargue or renew the motion to confirm. The orders appealed from concern an action brought by the plaintiff for the partition of certain real property. It appears that the undivided interest of the plaintiff was subject to a mortgage on and before the commencement of the action in partition and that the mortgagee bank was not made a party to the action. The fact of such mortgage was not brought to the attention of the court until after the sale of the premises had been duly performed by the Referee. After notice thereof and upon the motion for confirmation of the report of sale the court refused to confirm the report. It further appears that the court refused to confirm the report on the theory that the mortgagee was a necessary party and therefore, the proceedings had been a nullity. The failure to have made the mortgagee a party does not make the proceedings null and void, but might make the title unmarketable and result in the purchaser having the right to be relieved of his purchase. (See Stock v. Mann, 255 N.Y. 100, 102, 104.) We determine that pursuant to subdivision 2 of section 904 Real Prop. Acts. of the Real Property Actions and Proceedings Law, the mortgagee herein was a permissible defendant, but not a necessary party, and that the orders appealed from must be reversed. We note that both the appellants and the respondent urged Special Term to confirm the Referee's report of sale. Orders reversed, on the law and the facts, and matter remitted to Special Term to confirm the Referee's report of sale and to award the Referee a fee and for such further proceedings as are not inconsistent with the foregoing memorandum, with costs to appellant Marie Sampson. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.