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courts on this subject, will secure the personal liability of the appellant Chamberlin. On the contrary, the doctrine of all the cases is, that there must be a contract by the party sought to be charged. In the celebrated case of Garnsey v. Rogers (47 N. Y., 240), Judge RAPALLO, in speaking of the promise of which a third person could enforce the performance, says: "To entitle him to an action, the contract must have been made for his benefit. He must be the party intended to be benefited." In the case of Vrooman v. Turner (69 N. Y., 284), Judge ALLEN, speaking of the rights of the third party claiming the benefit of an undertaking, says: "A legal obligation or duty of the promisec to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor."

The old idea was, that the ground of liability was that of equitable subrogation or substitution of the creditor, to all securities held by his creditor, the surety of the principal debtor, which the grantee became on agreeing to assume the payment of the debts, and this idea has never been repudiated. If, therefore, there be no assumption, and consequently no security, there remains nothing to which the creditor can be substituted.

As no person can be deprived of his property without due process of law, so there can be no personal liability imposed upon a party without his agreement, express or implied.

As there was no such agreement by the appellant, the judgment against him is erroneous.

The plaintiff occupies the position of an assignee of the mortgage foreclosed, and must abide by all the equities existing in relation thereto. (Schafer v. Reilly, 50 N. Y., 61.)

The judgment appealed from must be reversed, with costs.

GILBERT, J., concurred.

Present-BARNARD, P. J., GILBERT and DYKMAN, JJ.

Judgment and order appealed from, so far as it decrees Chamberlin

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liable for deficiency, reversed, and new trial granted, with costs to abide the event.

DUANE S. EVERSON, RESPONDENT, v. ALBERT F. JOHNSON, APPELLANT, IMPLEADED WITH OTHERS.

Notice of sale of real estate-need not be published in all the editions of the paper issued on the days of publication.

A sale of real estate, under a decree of foreclosure, will not be set aside because the notice of sale was not published in all the editions of the paper issued on the days on which the notice was published.

APPEAL from an order made at a Special Term, denying a motion. for a resale of mortgaged premises belonging to the defendant, Johnson, under a decree for the foreclosure of a second mortgage thereon.

The sale was sought to be set aside for a defect in the advertisement of the notice thereof.

The defendant's affidavit stated that the notice was only published in what was known as the two o'clock edition of the Brooklyn Eagle; that but few people knew of this edition, and that but few copies of it were sold. "That said two o'clock edition is not the newspaper, but only an edition thereof, and not a newspaper. That said two o'clock edition is of very limited circulation, and a notice of sale printed therein would not be publicly advertised, for the reason that said edition of said paper is of very limited circulation and is not publicly exposed or placed on the files of said paper, open to public inspection; and that said notice, though printed in said two o'clock edition for a great number of times, would only be seen by a few persons, and not by the persons who are in the habit of reading said Brooklyn Daily Eagle. For the reason also that the said newspaper is published in three editions daily, to wit: two o'clock, three o'clock, and four o'clock editions; that but very few, if any, of the two o'clock editions are sold or circulated; that the other editions, being the ones from which said notice was omitted, except as aforesaid, are the only editions of said newspaper which are placed on the public files, or placed in the hands of the

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public generally, and an omission from said last two named editions on the day on which it ought. to have appeared therein, would be likely to lead any one who was watching for such sale to think that it had been abandoned. That an edition of said paper is not the paper within the meaning of the law, and that said notice could only be publicly advertised in said paper in accordance with the spirit and letter of the statute by printing in the said paper designated, and on the days designated, the said notice of sale."

George R. Carrington, for the appellant.

Thomas Hooker, for the respondent.

DYKMAN, J.:

Applications to vacate and set aside judicial sales and for resales under judgments and executions are not infrequent, and are addressed to the sound discretion of the court. It is not intended by this that they are addressed to that discretion which cannot be governed by any fixed principles or rules, nor to the arbitrary will of the judge, but to "a legal discretion to be exercised in discerning the course prescribed by law," not to give effect to the will of the judge, but to that of the law.

The discretion is exercised, and the power of the court is interposed where there has been fraud or misconduct in any person connected with the sale, or accident, misapprehension or surprise, caused by the conduct of the purchaser or inadequacy of price, with other sufficient circumstances. These are reasons which have been held sufficient, and others will doubtless be held adequate as they arise. The great end and aim being, in all cases, the prevention of wrong and injustice.

Within no reason heretofore recognized by the courts, can the present application be granted. There is here no complaint of any inadequacy of price, nor of any misapprehension or misconduct, but the motion seems to be founded on the allegation that notice of sale was not published in all the editions of the paper issued on the days when the notice was published. Unless this omission was followed by some injurious results, it is not sufficient of itself to set aside the sale. If notice of a judicial sale is published in a

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proper newspaper for the requisite time, the end of the law is answered, and the number of copies to be printed and issued is not prescribed; no complaint is made of the attendance at the sale, nor that any were prevented from attending by want of notice. The defendant who makes this motion had ample notice, and was present; certainly he can make no complaint of the treatment he has received from the plaintiff since the commencement of the action. A spirit of fairness has pervaded the whole proceedings, and there is not sufficient reason for ordering a resale.

The order appealed from must be affirmed, with costs and disbursements.

BARNARD, P. J., and GILBERT, J., concurred.

Order affirmed, with costs and disbursements.

HANNAH DUBOIS AND ANOTHER, ADMINISTRATORS, &C., APPELLANTS, v. THE CITY OF POUGHKEEPSIE, RESPONDENT, IMPLEADED, &c.

Charter of Poughkeepsie, chapter 497 of 1874, as amended by chapter 215 of 1876-power of city to sell for taxes under-as to notice to be given to mortgagees—it may sell for State and county taxes-rate of interest it may collect— within what time sale must be made-fees of city attorney for selling, how fixed.

Under the amended charter of the city of Poughkeepsie, the purchasers at tax sales made thereunder are not required to serve notices thereof upon those holding mortgages upon the premises, unless the statement required by chapter 387 of 1840, as amended by chapter 266 of 1844, has been filed. Under the amended charter, the city has power to sell lands for unpaid State and county taxes, as well as for unpaid city taxes, and is entitled to collect interest at the rate of one per cent. per month upon all of the said taxes. Under section 8 of chapter 497 of 1874, providing that the city attorney, shall, upon making a sale, have "such fee as the common council may fix," the common council may fix the attorneys' fees for all future sales in one resolution.

The charter provided that every tax should be a lien upon the real estate charged with the payment thereof for two years, from the signing of the warrant for its collection.

Held, that the sale must be made before the expiration of the two years, and that it was not enough that all the preliminary proceedings had been taken,

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and the advertisement commenced within that period, where the sale took place a few days after the expiration thereof.

APPEAL from a judgment entered upon the trial of this action by the court without a jury, directing the foreclosure of a mortgage owned by the plaintiff, and determining and establishing the validity of certain tax sales of the mortgaged premises, and estabfishing the rights and interest of the defendant, the city of Poughkeepsie, in the premises affected thereby.

The city of Poughkeepsie claimed to be entitled to the possession of the mortgaged premises, under four alleged sales for unpaid city, county and State taxes, one made on January 18, 1877, for $50.39, one on December 27, 1877, for $55.98, one on January 3, 1879, for $53.50, and one on January 21, 1880, for $52.02.

These amounts were made up as follows:

On each sale the property was struck off to the city "for a term of fifty years, which was the shortest period for which any person at the time of such sale offered to take the said premises and pay the amount" for which the sale was made. No declaration of sale had been issued thereon.

It was found by the court that each sale was made for an amount in excess of the sum legally due at the time of sale, and also that the first, third and fourth sales were in part for, and were void as to, taxes which had ceased to be a lien at the time when the sales were had, as follows: