#### Matter of Proceedings Supplementary to Execution under a Judgment in Favor of Frederick Rawolle, Individually, and Frederick Rawolle and Margaret Marx, as Executors of the Last Will and Testament of Frederick Marx, Deceased, Judgment Creditors, *v.*Edward L. Kalbfleisch and Edward L. Kalbfleisch, Jr., Judgment Debtors.

(Supreme Court, Appellate Term,

May, 1905.)

Receiver — Sale by — Set aside for gross inadequacy of price and failure to publish notice as required by Rule 77.

A sale by the receiver of a judgment debtor of an interest in a trust fund for a grossly inadequate price, where the notice of sale was insufficient in form, and had not been published as required by Rule 77 of the General Rules of Practice, should he set aside upon payment to the judgment debtor of his judgment and costs in the supplementary proceedings.

Appeal from an order of the City Court of the city of New York which set aside a receiver’s sale of the right, title and interest of the judgment debtor Edward L. Kalbfleisch, Jr., in and to a contingent remainder left to him by the will of his grandfather, Martin KalMeiseh, deceased.

Otto Horwitz, for appellant.

Allen & Sabine (Yorke Allen, of counsel), for respondent.

*Per Curiam.*

We are of the opinion that while no fraud was shown in making the sale, in fact none is claimed as *365against the receiver, that nevertheless the order from which the appeal is taken should be affirmed.

It is true that the interest of said Edward L. Kalbfleisch in the trust fund of $40,000 was incumbered to the extent of $25,000, and was contingent upon his surviving his father, Martin Kalbfleisch, yet the price received for such interest was grossly inadequate, and for that reason alone the court in its discretion could and should set the sale aside.

The notice of the sale was insufficient in form and had not been published for ten days as required by Rule 77 of the Rules of General Practice. There was nothing in the notice that indicated what was to be sold or the extent of the interest of said Edward L. Kalbfleisch, Jr., in the thing that was to be sold. It is true that it is claimed by the appellant that the sale was advertised the day before the sale in a newspaper published in the city of Row York, but what the advertisement was does not appear except by inference.

It appears from the motion papers that the moving party, the respondent, in his notice of motion to set aside the sale offered to pay the amount of the judgment herein and the costs in the supplementary proceedingsj and the amount to be paid to the receiver herein as compensation for services. The order contains no reference to such offer.

We are of the opinion that the order appealed from should be modified so as to provide that upon the payment of the judgment herein with interest, and the thirty dollars costs in the supplementary proceedings, the motion setting aside the sale should be granted.

We cannot fix the amount of the compensation of the receiver because the papers do not show the amount of services he has rendered.

The order appealed from should be modified in the respect above suggested, and as modified, affirmed, without costs of appeal to this court.

Present, Scott, .Tbuax and Dowliistg, JJ.

Order modified, and as modified affirmed, without costs.