Ray v. Adams (44 A.D. 173, 1899)

Rumsey, J.:

A judgment of foreclosure and sale was entered in this action and the premises were advertised for sale on the 26th day of April, 1899, and were bid off by Henry Waters, the respondent here, who, at the time, paid to the referee ten per cent of the purchase' money and certain fees, amounting in all to $1,819.50, the purchase price of the premises being $18,025. When the time came for closing the sale, he refused to take the title, having discovered, as he says, that the premises were subject to the covenant against nuisances,, as it was called, of which he was ignorant at the time, of the sale. Thereupon, the referee, assuming to exercise his option to have a resale, put up the property again for sale, subject to the restrictive covenant, and upon the resale it brought $17,200 only, being $825 less than the price bid by Mr. Waters. The referee. proposed to retain that sum from Waters’ deposit at the time of his bid, insisting that he was liable for the deficiency upon the resale, and this motion was made by the purchaser to be relieved from his purchase, and to ¡require the referee to pay over to him the whole amount of his ten per cent deposit, with certain other payments which he had made. Upon the hearing at the Special Term the learned justice made an ■order relieving the purchaser from his purchase, and requiring the referee to repay to him the sum of $1,819.50 paid by him at the time that he bid off the premises. From this order some of the defendants, who are subsequent mortgagees, take this appeal.

It is insisted in the first place that the purchaser had waived the right to object to this covenant against nuisances. Whether he had or not was a question of fact presented to the court at Special Term upon the affidavits, and we see no reason why we should interfere with his conclusion that no such waiver was had. At the time of -the first sale, when the property was bid off by Waters, no reference was made, either in the advertisement or in the terms of sale, to the ■existence of the covenant complained of. That covenant was, substantially, that the owner of the premises would not erect or carry