Opinion
May 8, 1907.
John G. Van Etten, for the appellant.
Milton O. Auchmoody and Charles D. Deyo, for the respondent Jacob D. Wurts, as receiver, etc.
William D. Brinnier, for the respondent Clara D. Wilber, as administratrix, etc.
It has long been settled in this State that inadequacy of price, unaccompanied by other circumstances, is an insufficient reason for a refusal to confirm a judicial sale. ( American Insurance Company v. Oakley, 9 Paige, 259; Brown v. Frost, 10 id. 243; Tripp v. Cook, 26 Wend. 143; March v. Ludlum, 3 Sandf. Ch. 35, 51; Howell v. Mills, 53 N.Y. 322, 326; Wesson v. Chapman, 76 Hun, 592; Kellogg v. Howell, 62 Barb. 280; Lefevre v. Laraway, 22 id. 167.)
There are no circumstances in this case which justify the court's refusal to confirm the sale to the appellant. Such sale was fairly made in full compliance with the directions of the court and after personal notice thereof to all the creditors who had presented their claims to the receiver. Insufficiency of assets for the payment of the creditors constitutes no reason for interfering with the sale. If that were so a large proportion of judicial sales might be set aside. The creditors had ample opportunity to protect themselves. Had the purchaser made a hard bargain he could not and should not for that reason be relieved therefrom. The converse of the proposition is also true. If he has made a good bargain he is entitled thereto in the absence of unfairness. There is, also, in a case like this, a question of ethics involved. The receiver in making this sale represented the court, and the court cannot tolerate the idea that its representative should repudiate a bargain merely for the mercenary consideration of a subsequent opportunity for a better bargain.
The mistake of the proposed purchaser, Shultis, is offered as a reason for the resale. No proof of such mistake has ever been made. He is the only person who knows whether or not he made a mistake, and his affidavit should have been presented that the court might determine whether the claim of mistake was well founded and excusable. The recital in the resettled order as to his mistake is entirely unsupported by evidence. Furthermore, relief because of mistake is only granted to the mistaken party, and Shultis is not asking for relief because of his mistake, and is not even a party to this motion save as his interest as a creditor in common with the interests of the other creditors is represented by the receiver.
The order must be reversed, with ten dollars costs and disbursements, and the motion to confirm the sale granted, without costs.
All concurred; KELLOGG, J., in result.
Order reversed, with ten dollars costs and disbursements, and motion to confirm sale granted, without costs.