Opinion
December 11, 1961
In an action for the partition of certain real property in the Town of Huntington, the defendant appeals: (1) from an interlocutory judgment of the Supreme Court, Suffolk County, entered February 15, 1961, on the jury's special verdict after trial, which decreed, inter alia, that plaintiff and defendant are tenants in common of the premises, that each has an undivided half interest, that partition be made of the premises between the parties according to their respective shares, and that the said "premises * * * be sold at public auction" by a Referee; and (2) from a final judgment of said court entered August 10, 1961, which, inter alia, confirmed the sale and the Referee's report of sale, declared the sale to be "firm and effectual forever", denied defendant's cross motion to vacate the sale, and directed the Referee to execute and deliver his deed. Interlocutory judgment affirmed, without costs. Final judgment reversed, without costs; plaintiff's motion to confirm the sale and the Referee's report of sale, denied; defendant's cross motion to vacate the sale granted; sale vacated; and action remitted to the Special Term for proceedings not inconsistent herewith. The interlocutory judgment directed the sale of the premises, not the sale of the interests of the parties or of such title as they might hold in the premises. Hence, the Referee acted in excess of his authority: (a) by inserting in the terms of sale the provision that the purchaser should be entitled to "only such title as is held by the plaintiff and defendant"; and (b) by stating on the sale that the successful bidder would be required to accept such title as the sellers had "whether the title be marketable or unmarketable" (cf. Mullins v. Franz, 162 App. Div. 316; Becker v. Muehlig, 221 App. Div. 512, affd. 248 N.Y. 543). The Referee's announcement and imposition of such terms necessarily discouraged bidding. Defendant was entitled to a sale which would yield the best price that could fairly and reasonably be obtained, and where it appears that the sale was not fairly conducted, the court may, and should, set it aside ( Goldberg v. Feltman's of Coney Is., 205 Misc. 858). Nolan, P.J., Christ and Brennan, JJ., concur; Ughetta and Pette, JJ., concur in the affirmance of the interlocutory judgment but dissent from the reversal of the final judgment and vote to affirm such judgment.