Osborne v. Osborne , 26 Misc. 2d 821 ( 1960 )

Mario Pittoni, J.

Motion for an order directing the plaintiff to return certain moneys is granted to the extent of directing the plaintiff to return the sum of $1,780 to Gloria Rosner.

Admittedly, the Referee could not convey marketable title. Admittedly, a discontinuance of the partition action was obtained without a confirmation of the sale or the obtaining of a final judgment directing the conveyance in accordance with the sale. Therefore, the Referee is without the power to complete the transaction. The sum deposited with him, which is now in the possession of the plaintiff, should be returned to the successful bidder at the sale. The court has the power to order the return of this sum since “ By becoming a purchaser at a judicial sale, the contract of purchase is in literal sense made with the court ” (Parish v. Parish, 87 App. Div. 430, 432). Thére was no contract between the plaintiff and the purchaser. Settle order on notice.