(dissenting). — This was an application to the Supreme Court to set aside a sale of real estate had under a judgment in *25the action, 'which was for a specific performance, and. for a resale of the premises, on the grounds that the sale, which was in the city of New York, was made on the day of the charter election in that city; that the referee refused to sell the lots in the order requested by the Defendant; and that the Plaintiff, with a view to bid off the premises himself, discouraged bidders from bidding, whereby he was enabled to purchase the property at less than its value.
The sale cannot be pronounced irregular because held on the day of the charter election, for the prohibition of the statute against the transaction of business by courts upon the day of election does not extend to judicial sales. The circumstance of a sale being held upon that day, against the remonstrances of the Defendant, may be an element in a case made for setting it aside as unreasonably conducted, when, in consequence of such election, bidders did not attend, and the property for such reason failed to bring a fair price. But no such facts appear in this case.
The refusal to sell the lots in the order requested by the Defendant is, in verity, no reason for setting aside the sale. It does not appear that the referee abused his discretionary authority in regard to the order of selling, or that the Defendant is harmed by such refusal. The only subject of.inquiry is, whether the Plaintiff so interfered as to prevent or discourage bidders from bidding, to the prejudice of the Defendant.
The evidence, I think, comes short of showing any such interference. It is a sufficient answer to this allegation of the Defendant, that the whole evidence, without any contradiction, shows that the property brought all it was worth. Not a single witness swears that he would have been willing, on the day of sale, to give more for the property than it brought on the sale.
Several, it is true, speak in general terms of its having been sold at low prices ; and two say if it were “ now ” — that is, at the time of swearing, which was some months after the sale — put up at auction, it would bring considerably more than it did bring on the sale.
But it is shown that between the day of sale and the time thus *26spoken of, gold had advanced from 131 to 150 and more, and that real estate had risen in the market from that canse, as well as from an increased desire to invest in it. The sale was fairly conducted, and the property brought all it was worth. The Defendant should not now be permitted to speculate out of the rise of property, after having omitted to take any measures to have the lots bid in for his own on the day of sale.
The order denying his motion was properly affirmed by the Supreme Court, at General Term; and the order of affirmance should here be affirmed, with $10 costs.
Reversed.
JOEL TIFEAEY, State Reporter.