Code of Civil Procedure provide what notice shall be given by the officer appointed to conduct the sale, and in this case the referee gave notice of the sale as required by said sections, and performed all his duties as directed by said judgment. The entire proceeding from the time of the entry of judgment of foreclosure and sale was simply an execution of the judgment, and the attorney for said defendants was not entitled to have notice served upon him of the steps taken in execution thereof. Moore v. Shaw, 15 Hun, 428, 430, 431. The notice of sale given by the referee by publishing, etc., was notice to all defendants, and no other or further notice was required to be given.

Motion denied, with $10 costs.

NOTICE OF JUDICIAL SALE OF REAL PROPERTY,-continued.

it is therefore the only notice called for under the exceptions in the waiver aforesaid. But it appears from the papers submitted on this motion, which include the certificates of many leading lawyers and law firms, that it is the practice of the bar, under such a notice of appearance, to serve, and the usage to expect, the special notice of the sale, intended to advise the defendant of the time and place when such sale is to take place. In view of such a general practice and usage, it is to be presumed that the respective attorneys for the plaintiffs and the defendant in this case had knowledge of them and practiced with reference to them, and that the notice of appearance for Mrs. Mooney was given in reliance upon that practice and usage, and was received with knowledge of the obligation entailed. The notice of sale mentioned in the exception in the waiver could not have been understood to refer to the advertisement; for in that case the exception would be meaningless as the advertisement is compulsory in all cases."

d. Publication.

The insertion of a notice of sale of mortgaged premises under a judg ment of foreclosure, to take place the 28th of a month, in a daily news paper on the 9th and 12th, on the 16th and 19th, and on the 23rd and 26th of that month is a publication for three weeks immediately previous to the time of sale, at least twice in each week, within the meaning of the statute.

Chamberlain v. Dempsey, 13 Abb. Pr. 421.

Publication of a notice of sale of real property in the city of New York

1900]

NOTICE OF JUDICIAL SALE OF REAL PROPERTY,-continued.

under a decree of foreclosure, to take place on the 20th of a month, in two newspapers on the 27th (Wednesday) and 30th (Saturday) of the preceding month, on the 4th (Wednesday), 7th (Saturday), 11th (Wednesday), and 14th (Saturday) of the same month, and in one of them on the day of the sale, is sufficient.

Valentine v. McCue, 26 Hun, 456.

The two following cases were determined under the provisions of 2 R. S. 368, § 34, "The time and place of holding any sale of real estate pursuant to any execution, shall be publicly advertised, previously, for six weeks successively, as follows:

1. A written or printed notice thereof shall be fastened up in three public places in the town where such real estate shall be sold,

2. A copy of such notice shall be printed once in each week in a newspaper of such county, . .

It is sufficient notice of the sale of real estate upon execution, to post a notice as required by the statute forty-two days previous to the sale and publish a copy thereof in six successive numbers of a weekly newspaper, although the first publication may be less than six weeks prior to the sale.

Olcott v. Robinson, 21 N. Y. 150.

The publication of a sheriff's notice of sale of real estate under execution is sufficient, if inserted once in each week for the six weeks before the sale, although six full weeks should not have elapsed between the date of the first publication and the day of sale.

Wood v. Morehouse, 45 N. Y. 368.

A sheriff's sale, under execution, of an interest in a lease, for a term of which more than five years remain unexpired, and fixtures forming a part of a freehold estate, in the same manner as is provided in respect to personal property, with a notice of only six days, is void.

Breese v. Bange, 2 E. D. Sm. 474.

The two following cases were decided under 2 R. S. 545, § 3 which provides that notice shall be given, 1. "By publishing the same for twelve weeks, successively, at least once in each week."

Publication of a notice of sale, on a statutory foreclosure by advertisement, is sufficient, if it be made once in each week for twelve weeks successively, although all the publications are made within 78 days, provided the first is 84 days prior to the day of sale specified in the notice, exclusive of the day on which it is made.

Howard v. Hatch, 29 Barb. 297.

The first publication of the notice of sale, under a power in a mortgage, must be at least 84 days or 12 full weeks, before the sale, one day being included and one excluded, and publication must be made in every intervening week, or until the expiration of the time required by statute. Bunce v. Reed, 16 Barb. 347

NOTICE OF JUDICIAL SALE OF REAL PROPERTY,-continued.

1. Newspaper.

A foreclosure sale will not be set aside because the newspaper in which the notice of sale was published was not well calculated to give that general information which, in such cases, should be afforded.

Wake v. Hart, 12 How. Pr. 444.

A publication issuing two editions daily, except Sunday, having a circulation in a city of 1,000, and elsewhere of more than 4,000, which, although containing matter of special value to attorneys, bankers, brokers, commission merchants and real estate dealers, yet devotes several columns to general advertising and to the publication of local and other news of general interest, and is printed in sheet form, as newspapers usually are, must be deemed a newspaper within the meaning of the provision of the Code of Civil Procedure relating to the publication of notices of sale of real estate in foreclosure actions, notwithstanding the fact that the publication is not sold by newsboys nor at news stands, but only by subscription and upon application at the office of the publisher, and a notice of sale is properly published therein.

Williams v. Colwell, 14 App. Div. 26; 77 St. Rep. 720; 43 Supp. 720.

2. Editions.

Notice of sale of real estate under a decree of foreclosure need not be published in all the editions of the paper issued on the days on which the notice was published.

Everson v. Johnson, 22 Hun, 115; Abbott v. Curran, 20 Week. Dig. 344.

e. Postponement.

Failure to publish notice of an adjournment of a foreclosure sale until after the day to which it was adjourned and upon the day of sale set by a subsequent adjournment, is an irregularity for which the sale may be set aside, but the sale is not void.

Bechstein v. Schultz, 120 N. Y. 168; 24 N. E. 388; 30 St. Rep. 576. Where, on the day of sale of real property under a decree of foreclosure, the sale was adjourned to a future day, but notice of the postponement as published was for a different and more distant day, a sale made on the later day is irregular and void.

Miller v. Hull, 4 Den. 104.

Notice of a postponement of a sale of mortgaged premises, pursuant to a power under the statute, need not be posted and published for the same period previous to the day to which the sale is postponed as is required by the statute for the original notice.

Jackson v. Clark, 7 Johns. 217.

Although the original notice of sale of mortgaged premises under a fore

NOTICE OF JUDICIAL SALE OF REAL PROPERTY,-continued.

closure by advertisement is entirely ineffectual, republication of the notice with the several notices of postponement for twelve weeks preceding the day to which the sale was finally postponed, is a sufficient compliance with the requirement of the statute.

Cole v. Moffitt, 20 Barb. 18.

Where, before the day of a sale of mortgaged premises, pursuant to a power under the statute, which was duly noticed by posting and publication at the proper time, notice of postponement was not posted, but was subjoined and continued with the advertisement of the original notice until the expiration of the time for publishing the original notice, as required by the statute, after which both notices were discontinued, a sale held on the day originally noticed is irregular and void. Jackson v. Clark, 7 Johns. 217.

Where, pending the advertisement of sale of premises in partition, the plaintiff died, and his share passed to his three children, two of whom were defendants in the original action, and the third was made plaintiff, by order of the court, as successor in interest to the original plaintiff, it is not necessary to advertise anew, changing the title of the cause. Thwing v. Thwing, 18 How. Pr. 458.

1. Waiver.

The omission to publish the notice of postponement of a foreclosure sale until after one of the dates to which it is adjourned, is waived, where it appears that the referee's report of sale was duly served upon all parties to the action, no exceptions were made thereto, and the sale was upon due notice ratified and confirmed by the court without objection. Bechstein v. Schultz, 120 N. Y. 168; 30 St. Rep. 576.

f. Resale.

When the time for selling mortgaged premises, under a decree of foreclosure, pursuant to notice has passed, and no valid sale has been made, a resale cannot be made without again advertising the sale. Bicknell v. Byrnes, 23 How. Pr. 486.

g. Several executions.

A sheriff who advertises for sale land on but one execution, cannot sell the same land under that execution and another against the same judgment debtor, coming subsequently to his hands, by virtue of the same advertisement, but must give a new notice of sale under the second execution.

Mascraft v. Van Antwerp, 3 Cow. 334.

A sale of real property, advertised to be had under specified executions

NOTICE OF JUDICIAL SALE OF REAL PROPERTY,―continued.

in the sheriff's hands, cannot, without a new notice of sale, be made under an execution delivered to the sheriff after the first publication of the advertisement, and not specified in it, although the sale is postponed for more than six weeks after the reception of the junior execution, and such postponement is regularly advertised.

Husted v. Dakin, 17 Abb. Pr. 137.

MATTER OF SNELL.

[32 Misc. 611; 101 St. Rep. 581; 67 Supp. 581.]

(Surrogate's Court, Montgomery County. October, 1900.)

WILLS-EXECUTION-FASTENING OF SEPARATE SHEETS.

A will written on several sheets of paper, and signed by the testator at the physical end of the writing, is properly executed, though the sheets are not fastened together until after the execution, since the statute does not provide for the fastening together of the sheets composing a will.

Proceedings for the probate of the will of Josiah Snell, deceased. Probate decreed.

NOTE.-TESTATOR'S SUBSCRIPTION AT END OF WILL.

An exhaustive note on this subject can be found in 4 Ann. Cas. 261, covering the cases down to 1897. What is given here is supplementary to that note and covers the period since its publication.

A will drawn on a printed blank, folded at the middle so as to consist of four pages, is not subscribed at the end within the meaning of the stat ite, where it was written on the first page, then on the third, and the second contained the provision for the appointment of the executors, the testimonium and attestation clauses, all properly executed, and this although such third and second pages contained, at the top thereof, the respective words "2nd page" and "3rd page."

Matter of Andrews, 162 N. Y. 1; 56 N. E. 529.

In the case last cited the court held that the doctrine of incorporation could not be successfully invoked to read into the will under consideration the alleged second page, as the result would be to permit`an evasion of the statute.

The fact that a will is only written on the first and third pages with