Opinion
March, 1926.
Order modified by providing that there shall be a resale of the entire premises in the manner provided for in the order and with the distribution of the proceeds as therein also provided, upon condition that the respondent within five days pay to the referee the expenses of the sale already had, in which event the order, as modified, is affirmed, without costs. In the event of the respondent not making such payment, the order will be reversed upon the law and the facts, with ten dollars costs and disbursements, and motion to modify the order of September 15, 1925, denied. We are of opinion that the order appealed from affects plaintiff's substantial rights, but that the equities of the respondent are such as to require a resale of the mortgaged premises. While the respondent did apply before the sale for the relief which the order appealed from, made after the sale, granted, we think that the respondent should have applied for a stay of the sale until its rights as a junior mortgagee could be properly determined. Its failure to so apply requires the imposition of the terms stated. Kelly, P.J., Rich, Jaycox, Kapper and Lazansky, JJ., concur. Settle order on notice.