entirely dissent from this opinion.
There is not a particle of evidence showing collusion or connivance between the plaintiffs and defendants in the judgments *135sought to he set aside by this action. It is based upon mere suspicion, arising from the relationship of the parties. The actions in which those judgments were recovered, were commenced without any communication or understanding between the parties, or even any knowledge on the part- of the defendants therein, until the summonses were served. At all events, there is no evidence whatever of any such communication, understanding, or knowledge, but rather the contrary,—namely, a determination, if possible, to defend them. I repeat, there is no proof of collusion, but so far from it, the proof discloses resistance. And the material of which this motion is composed, is solely suspicion ; which, as suspicion, may be plausible; but, as the foundation of a legal proceeding, is most unsafe. The judgment-creditors have done nothing more than, by superior vigilance, to secure their debts; if they were the greatest strangers and most bitter enemies of the defendants in these judgments, they could have done nothing more or less to satisfy their claims than they have done.
II. Appeal from order denying motion to vacate sale, and direct sheriff to retain property and proceeds.
At about the same time that the plaintiff moved for the injunction as above stated, he moved also in the same action for an order that the sales already made by the sheriff, under the executions and judgments which the plaintiff sought to avoid, should be set aside, and a new sale ordered.
The motion was founded on affidavits, alleging that the property sold was not sufficiently advertised and exposed, and was sold for inadequate prices. The affidavits to oppose the motion responded very fully to these allegations. The details of the affidavits it is not necessary to state. The motion was denied at special term, and the plaintiff appealed.
R. B. Roosevelt, for the appellant.
Tracy, Powers & Tallmadge, for respondents Sheldons, the judgment-creditors.
Bogardus & Brown, for respondents Sheldons and Harris, the judgment-debtors.
*136By the Court.—Davies, J.This suit is instituted for the purpose of setting aside certain judgments entered by default against the defendants Odiah L. Sheldon, Horace B. Sheldon, and William Harris, in favor of the other defendants James 0. Sheldon, Henry K. Sheldon, and Ann P. Sheldon. The defendants in those judgments being the general partners of a limited partnership, composed of them and one Lucius M. Sheldon. Executions were issued upon those judgments, by virtue of which the property of the judgment-debtors has been levied .upon and sold by the sheriff of the city and county of Hew York.
A motion is made in this cause to vacate and set aside such sale, on the ground of certain alleged irregularities, in conducting the sale.
A careful perusal of the affidavits has failed to satisfy my mind that the irregularities complained of are of that serious character, which would warrant the court upon that ground to vacate the sale.
The affidavits of the auctioneer and deputy sheriff, the latter particularly having had long and great experience in conducting such sales, are positive, that every effort was made to display the goods so as to bring the best price, and every precaution used to give the utmost publicity to the sale, and insure the greatest number of bidders. The evidence is not clear that the goods were not properly arranged in lots, and put u¡) so as to bring the best prices.
The affidavits certainly preponderate in establishing that the sale was fairly conducted, that the goods were well arranged for the sale, and that the prices obtained were as near the value of the goods sold as is usual on sheriffs’ sales.
But a fatal objection to this motion, we think, is, that it is not made in the suits in which the executions were issued. The object of the motion is to correct an irregularity in these suits, to set aside a proceeding had in them, and to obtain a re-sale upon the executions issued in these suits.
The application for such rolief, we think, should have been made in these suits, and if the sale which has been had by virtue of the execution issued in them was irregular and should be set aside, and a resale ordered, it was proper that such orders should have been made in these suits. So far as setting the sale - aside for irregularity, it was a proceeding in them which is *137sought to be corrected by a motion in this cause, and we think the motion for that > purpose should have been made in those causes.
But the motion asked for more, that the sheriff should retain possession of the property levied upon, and hold the same to abide the further order of this court. ■
If the views expressed on the other appeal in this cause are correct, then clearly it was the duty of this court to direct the sheriff to retain such property or its proceeds, to be distributed equally among the persons entitled thereto. 1 The order appealed from was, therefore, erroneous in refusing to grant the relief asked for by the plaintiff, and should, therefore, for this reason be reversed, but without costs.
Boosevelt, J.—concurred.
Cleeke, J.—dissented.