BLANCHARD, J.
The auction sale set forth in the pleadings was not necessarily illegal because of the fact that the plaintiff may have had some secret arrangement with the auctioneer that the property was not to be struck down to a purchaser except when the amount bid was satisfactory to the plaintiff. It is not disputed that the property sold was actually sold to the highest bidder, and there is no claim made by the defendant that the plaintiff made use of a "puffer" to bid up the price of the goods sold, as was the case in Bowman v. McClenahan, 20 A.D. 346. If such a "puffer" had been used by the plaintiff I do not think the sale would have been void, but that it would have been voidable at the election of the purchaser only. Minturn v. Main, 7 N.Y. 220. The plaintiff having sold the goods at auction to the highest bidder and the auctioneer having failed in his duty to pay over to the plaintiff the proceeds of sale, the defendant is liable to the plaintiff as the surety on the auctioneer's bond. Laws of 1897, chap. 682, § 5. The demurrer to the answer for insufficiency should be sustained, with costs.
Demurrer sustained, with costs.