Opinion
Argued June 28, 1883
Decided October 2, 1883
Edward Fitch for appellants.
Wheeler De F. Edwards, guardian ad litem for infant defendant. Samuel Untermeyer for respondent.
This appeal is taken by the heirs and legatees of William Eckert, deceased, from an order made in the above-entitled action, confirming a referee's report of sale, and also from an order denying a motion to set aside a sale of the property formerly belonging to the firm of Eckert Winter.
The sale was conducted under the direction of a referee duly appointed by the court to make it, and in accordance with the terms prescribed by the judgment authorizing the same.
The judgment was pronounced in an action in which George Winter, in his several capacities as one of the executors of William Eckert, deceased, as survivor of the firm of Eckert Winter, and individually was plaintiff, and all and each of the present appellants, either as heirs, legatees, widow or co-executor of William Eckert, deceased, were defendants.
This judgment remains in full force as a binding adjudication upon all of the parties to the action, and conclusively determines as between them, not only the necessity and propriety of, but the place and manner of a sale of the property, including the conjunctive sale of the real and personal property therein described, at a place where the presence of the personal property on such sale was entirely impracticable.
Nothing appears in the record showing that the sale was not conducted in strict conformity with the directions of the judgment and the rules of law regulating such sales.
The order of the General Term affirming the order of the Special Term confirming the referee's report of sale should, therefore, be affirmed.
The application to the court below to reopen and order a resale of the property was properly denied.
The moving papers did not show that the property was sold at an inadequate price, or that a larger price could reasonably be expected to be obtained upon a resale. On the contrary it appeared that there was a large attendance of buyers at the sale; that bidding was spirited and the prices obtained were satisfactory to the present appellants at the time of the sale. It conclusively appeared that the sale was fairly conducted, upon a notice that contained all that was fairly necessary to apprise intended purchasers of the character and quality of the advertised property, and that every facility was offered to buyers upon the sale to instruct them properly before making their bids.
The question presented upon this application was addressed to the discretion of the court below, and we think, in the exercise of that discretion, the motion was correctly disposed of.
However that may be, we have no power to review their decision of that question, and the order refusing to reopen the sale is not appealable to this court.
That appeal should be dismissed, and the order affirming the referee's report of sale affirmed, with costs of both appeals to respondent.
All concur, except ANDREWS, J., absent.
Appeal dismissed.