dissenting.
I dissent from the majority opinion. Of course I am well aware that this court, in a number of cases, has frowned upon the entertainment of upset bids where judicial sales are made openly and fairly after having been duly advertised. When property has been knocked off to the highest bidder» he becomes favored by the court. This is in the interest of the stability of judicial sales. To hold that all parties are firmly bound is to lend confidence to such transactions. The motive is a commendable and worthy one and enjoys the imprimatur of the law.
There are, however, exceptions to all cases and the circumstances which obtain here lead me to the conclusion that there is presented a setting of facts which should cause its release from .the fetters of stare decisis that a higher conception of justice be conserved..
The appellees were the highest bidders at the gross .price of $17,900. The appellant entered the picture by offering an upset bid of $23,000, and avouched his good faith by tendering a certified check in the sum of $8,000. If this *856were all of the narrative no plausible objection could be made to the views of the majority. But it is not the whole story.
There are persons interested as part owners of the property who are under, what we call in law, disabilities. There are infants and there are those who are engaged in the defense of their country. Of course they were, in a technical legal sense, represented in the manner required by law. But the material gain to them which would be produced by the excess price is a matter of moment. They should be and are the objects of the tender care and solicitude of the courts.
The record discloses the fact that there was a lurking, latent, unobservable element of value in the property. It was a value peculiar to it and to its setting and its locus. It was what might almost be called an imponderable, except it was capable of being weighed and appraised by those who ,knew of its existence. This is made to stand out' boldly by the magnitude of the upset bid and by the fact that one of the appellees said, with respect to the value of his bargain, that he was prepared to make the property bring 130,000.
This element of worth was unknown to the commissioners and therefore it was not embraced in the advertisement. Had they been aware of it it would have been emphasized and stressed and the scope of the publishment would have been wider and more extensive.
If this were all to be said it would perhaps be not enough. More, the appellant was not present at the sale. He was not as one who stood by refusing to bid and saw the property sold to another. He was unaware of the sale. He was in the city of New York and when he learned of it he made haste to submit his offer to the court.
To my mind there is here presented a set of circumstances which should take this case from the general rule. Its receipt by the court as a just exception is as lofty in concept as the rule itself.
A blind and slavish adherence to precedent becomes a fetish and is an ally of injustice.
The peculiar value, to which I have alluded, of the prop*857erty and the adaptation of the latter to the peculiar use for which it was desired by both the appellant and the appellees is set forth in extenso in the majority opinion and need not be repeated.