and submitting to the terms of sale and paying the 10 per cent., became the purchaser. He says that when he failed to comply with its terms the referee had the power to put up the premises and property for sale, or, if the plaintiff's attorney was desirous of holding him for a deficiency, he might apply to the court upon notice to him for an order decreeing a resale. Anthon v. Bachelor, 5 N. Y. Supp. 798; Chase v. Chase, 15 Abb. N. C. 95. What he did, and what the respondents claim he had the right to do, was, when the purchaser failed to pay the balance of the purchase price at the office, to put the property and premises up for sale at his office and resell it immediately. They claim the conduct of the referee to be justified by what the Appellate Division, First Department, said in Egan v. Buellesbach, 116 App. Div. 309, 101 N. Y. Supp. 476, speaking of terms of sale identical with those above quoted: "These terms of sale have been in use for many years, and are perfectly familiar to all purchasers at judicial sales. There could be no question but that, if the referee had, immediately upon the purchaser's stopping payment of the check and refusing to comply with the terms of sale, put the property up for resale, without application to the court, the purchaser would have been liable for any deficiency." [3] I do not understand the language to mean that the property could be immediately offered for sale without advertising in the newspaper and posting the notice. What it does mean is that the property and franchises could be immediately readvertised and noticed, and thus put up for resale. This word "immediately," as used by the court in the language heretofore quoted from the Egan Case, has reference to putting up for sale without mediation of a court order. Thus interpreted, it is in harmony with reason and with the cases. When the property is struck off, and the terms of sale signed and complied with, as far as required on the sales day, and the bidders have departed, and the day faded into the past, the referee cannot sell again without compliance with the statute. In Jones v. Null, 9 Neb. 256, 2 N. W. 350, the sheriff had sold some real estate to one Colby for $1,925. He failed to complete his purchase, and the sheriff, an hour after the sale, going back to the place thereof, resold. The court held: "He cannot wait until the sale is closed and the bidders have departed before again offering the property for sale." In the case of Barnard v. Duncan, 38 Mo. 170, 90 Am. Dec. 416, the court, discussing a similar situation, where bidders had departed, says: "Upon the refusal to accept it [the deed] the trustee proceeded at once to put up the property for sale again, at the same place, on the same day, without readvertising or any new notice, and, few persons being present, the property was resold for $25. This proceeding can neither be justified nor sustained. It was, in practical effect, a sale without notice. The sale, as advertised, had taken place several hours before, and all bidders had departed. Though yet within the hours mentioned in the advertisement, it cannot be considered a fair and valid sale pursuant to notice." It is not pretended that the sales in the two above-described cases were under terms of sale like those in the case at bar. The point is that, for a sale held at the office of the referee eight days after the first sale, there was no notice, no publication. That there were at the referee's office bidders was an accident. In a sale so had the very purposes of the statute were ignored. The referee is authorized to sell by the decree as directed by the statute. If the sale for any reason fails, he has the power to carry out the terms of the judgment and resell; but it must be a public sale upon notice. Bicknell v. Byrnes, 23 How. Prac. 486; Gross v. Jancsok, 16 Daly, 346, 10 N. Y. Supp. 541; Hewlett v. Davis, 3 Edw. Ch. 357; Home Ins. Co. v. Jones, 45 How. Prac. 498; 27 Albany Law Journal, 508; Lents v. Craig, 13 How. Prac. 72; Id., 2 Abb. Prac. 294; Thomas on Mortgages (3d. Ed.) § 988. The judgment of foreclosure cannot be executed by a private sale. Ely v. Matthews, 128 App. Div. 515, 112 N. Y. Supp. 788; Vannerson v. Cord, Smedes & M. Ch. 345. The only manner in which a deficiency judgment on the bond or against a purchaser for refusing to comply with the terms of sale can be determined is by a public sale. Nesbit v. Knowlton Hall Co., 45 Misc. Rep. 513, 92 N. Y. Supp. 761. These reasons and cases leave little doubt but that the referee was without power to resell without readvertising and reposting. The distinctive features of a public sale are advertisement published in a newspaper, notices posted in public places, exposure for sale of the thing to be sold in a public place. A sale not having such features could not be a public sale. The vice in the sale at the referee's office is that it was a private sale. [4] The third question is: Had Philip the right to complain of the sale? It may be claimed that, having refused to complete his purchase and being excused from payment of a deficiency by the order vacating the stay, he is in no position to challenge the validity of the resale. I think the matter jurisdictional. There was no authority for the sale had, nor for the acceptance of any other bid after the day of the first sale. May v. May, 11 Paige, 202. Philip did nothing after the sale of the 25th of April to waive his right to bid. The order vacating the stay, as far as it excused Philip from the payment of a deficiency is vacated. The sale is set aside, the deed canceled, and a resale ordered. If less shall be realized than $28.000 at the resale, application may be made to the court to fix the liability and amount of deficiency which Philip should be required to pay because of failure to complete his purchase on the original sale. The purchaser at the office sale should be repaid out of the proceeds of the resale moneys necessarily spent in opening and placing in readiness the railroad for operation. The same referee is appointed. Order may be settled June 24th, 10 a. m., in Supreme Court chambers, courthouse, Kingston, N. Y. (Supreme Court, Appellate Division, First Department. July 10, 1916.) EVIDENCE 309-HEARSAY-RELATIONSHIP. Evidence of declarations as to pedigree is competent only if the declarant is proved, by evidence dehors his own declarations, to be a member of the family by blood or affinity, which the declarations are intended to affect. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1162; Dec. Dig. ~~309.] Appeal from Order of Surrogate, New York County. In the matter of the application of Jeremiah S. Perkins, attorney in fact, for an order directing the Comptroller of the City of New York to pay to the petitioner moneys deposited to the credit of the unknown next of kin of Rose Fitzpatrick. From an order of the surrogate, affirming a report of the referee, directing payment of the deposit, the Comptroller appeals. Reversed, and matter remitted to the surrogate for further proof. Argued before CLARKE, P. J., and McLAUGHLIN, SCOTT, SMITH, and PAGE, JJ. Charles J. Nehrbas, of New York City, for appellant. Junius Pendleton Wilson, of New York City (Harry Edwards, of New York City, of counsel), for respondent. SMITH, J. Rose Fitzpatrick died intestate in the city of New York on August 26, 1906. Her estate is in the city treasury awaiting proof of ownership. The parties who on this petition claim to be entitled allege themselves to be cousins of Rose Fitzpatrick four generations removed from their common ancestor, one Patrick Cassily. He had a son, John Cassily, who is the ancestor of the claimants, and a daughter, Jane, who, the petitioner asserts, is the ancestor of the decedent. It is admitted that one Rose Donahue married John Fitzpatrick and was the mother of the decedent, and, to link the families. together, the claimants assert that this Rose Donahue was the daughter of Jane Cassily and one Stephen Donahue. It is at this point that the difficulty appears in the lack of competent evidence to prove that Jane Cassily married Stephen Donahue and had a daughter, Rose. To prove this, two of the claimants testified that their mothers and grandmother had told them that Jane Cassily married a Stephen Donahue and had a child, Rose. This testimony is incompetent under the rule laid down in the case of Aalholm v. People, 211 N. Y. 406, 105 N. E. 647, L. R. A. 1915D, 215, Ann. Cas. 1915C, 1039, to the effect that declarations are competent only in case the declarant is proved, by evidence dehors his own declarations, to be a member of the family by blood or affinity, which the declarations are "intended to affect," or "concerning which he speaks." This condition is not met here. The testimony of one Owen Cusack that he had heard that Jane Cassily had married a Stephen Donahue was pure hearsay, and incompetent. The testimony of a Mrs. Meehan that she had heard the decedent For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes say that she had cousins named Newman, the family name of some of the claimants, is too indefinite to be of any substantial value. The proof, apart from the incompetent evidence, is clearly insufficient in law, and for the error in the admission of this evidence the judgment must be reversed, and the matter remitted to the surrogate for further proof, without costs. Order filed. All concur. (174 App. Div. 193) In re HILTON. (Supreme Court, Appellate Division, First Department. July 10, 1916.) TRUSTS 271-CONSTRUCTION OF POWERS. Where the will creates a trust fund, and authorizes the trustees to apply so much thereof as they may from time to time consider necessary, proper, or expedient for the support and maintenance of the beneficiaries, the court will not, in the absence of abuse, interfere with the discretion of the trustees. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 380, 381; Dec. Dig. 271.] Appeal from Surrogate's Court, New York County. Petition by Albert B. Hilton, Jr., for allowance from a trust fund under the will of Henry Hilton, deceased, opposed by Edward D. Harris and another, trustees. From an order directing the allowance, the trustees appeal. Reversed and remitted. Argued before CLARKE, P. J., and McLAUGHLIN, SCOTT, SMITH, and PAGE, JJ. Albert Stickney, of New York City, for appellants. SMITH, J. The will provides that the trustees may "pay out or pay over or apply so much and such parts thereof (Albert Hilton's interest) as they may from time to time consider necessary, proper or expedient for the support and maintenance of the said Albert and his wife and children during his life." This allowance to Albert B. Hilton and his family may be made by the trustees, either from the income or from the principal. The trustees have in fact paid to Albert B. Hilton and his family all of the accumulated income, so that now they are encroaching upon the principal, and, in order to support the family, they are allowing $36,000 a year for that purpose now, and also $7,000 for a married daughter. The petitioner, a son, now makes application for an additional $7,000, and the court has directed the trustees to pay him $4,000 a year in addition to what is paid to Albert Hilton and the family. The trustees have appealed, insisting that the discretion is left solely with them, and not with the court. It would seem that this contention is sound, and that the discretion of the trustees governs, at least unless they abuse their trust. The cases cited by the respondent here are none of them cases in For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes which the amount of the allowance was specifically left to the discretion of the trustees, as in the case at bar. In the Matter of Akin's Estate, 145 N. Y. Supp. 1105, Surrogate Fowler stated the rule that, where testamentary trustees were given discretion under a will, the court will not interfere with the reasonable exercise of that discretion. This testator, as he had the right to do, left to the discretion of the trustees what amount should be paid out for the support of the family of Albert B. Hilton. No evidence is adduced even tending to show an abuse of that discretion. Until such fact is shown, the law will leave the petitioner where the deceased left him, to convince the trustees that his claim is reasonable under all the circumstances of the case. The order of the surrogate should be reversed, with costs, and the proceeding remitted to the Surrogate's Court for action in accordance with this opinion. All concur. (173 App. Div. 790) GUENTHER v. RIDGWAY CO. (Supreme Court, Appellate Division, First Department. July 10, 1916.) PLEADING 231-AMENDMENT. Where a complaint was amended by leave of court, the plaintiff, upon defendant serving an amended answer thereto, could serve a second amended complaint within 20 days, under Code Civ. Proc. § 542, allowing one amendment, for an amendment by leave of the court is not a substitute therefor. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 594-598; Dec. Dig. 231.] Appeal from Special Term, New York County. Action by Louis Guenther against the Ridgway Company. From an order declaring null plaintiff's attempted service of his second amended complaint, he appeals. Reversed and remanded. Argued before CLARKE, P. J., and McLAUGHLIN, SCOTT, SMITH, and PAGE, JJ. E. C. Crowley, of New York City, for appellant. James B. Sheehan, of New York City, for respondent. PAGE, J. Upon motion of the defendant, portions of the original complaint were stricken out, and the plaintiff given leave to amend. An appeal therefrom was taken to this court, and the order affirmed, and thereafter the plaintiff served an amended complaint pursuant to the order. A trial was thereafter had, which resulted in a verdict for the plaintiff, which on appeal to this court was reversed, and a new trial ordered. 170 App. Div. 725, 156 N. Y. Supp. 534. Thereafter defendant moved to be allowed to serve an amended answer, and was allowed to do so upon the payment of costs to date. Upon the day the amended answer was served the plaintiff served a second amended complaint. This he clearly had a right to do, pursuant to section 542 of the Code of Civil Procedure. It has been uni For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |