We are of opinion that the order appealed from should be affirmed. It is clear that the weight of authority is in favor of the proposition that a purchaser at a judicial sale gains no title, either legal or equitable, until the date fixed for the transfer of the deed. (Cheney v. Woodruff, 45 N. Y. 98; Robbins v. Arendt, 4 Misc. Rep. 196; Mitchell v. Bartlett, 51 N. Y. 441.)
In the matter now before us, the purchaser signed a memorandum, paying ten per cent of the purchase price, in which he agreed to pay the remainder, or $3,285, on the 9th of March, 1899, that date being fixed as the time when the referee’s deed should be ready for delivery. On the twenty-eighth day of February, intermediate the day of sale and the time for closing the title, a building, which was upon the property when the sale was made, was burned to such an extent that the public authorities ordered its demolition, at the same time refusing to permit the construction of a building to take its place, causing a depreciation in the rental value of the property of $80 to $96 per year. The referee was not, therefore, in a position to' give the purchaser a title to- all the property which he undertook to sell, and which the purchaser rightfully supposed he was to receive (Riggs v. Pursell, 66 N. Y. 193, 198), and it -would be doing him an injustice to compel him to accept and pay for this property, a- portion of which had passed beyond the control of the referee before the time fixed for the transfer of the title. The purchaser had acquired no title at the time of the fire, and he cannot be compelled to take title to less property than was involved in the original sale. (Goldman v. Rosenberg, 116 N. Y. 78, 86.)
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.