Alexander v. McLaughlin

246 A.D. 189, 285 N.Y.S. 261, 1935 N.Y. App. Div. LEXIS 8690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1935
• Status: Published

Opinion

Per Curiam.

Defendaiits, as sheriff and deputy sheriff, respectively, made a levy, under execution, upon certain personal property of plaintiff, a judgment debtor; and procured it to be sold without giving notice of sale as prescribed by section 707 of the Civil Practice Act. Defendants did not themselves sell the property, but induced and employed certain tenants on shares, upon the farm of plaintiff, to sell the property, consisting of annual crops, and to turn over to defendants the one-half of the proceeds belonging to plaintiff. Since defendants could not lawfully sell plaintiff’s property under execution without giving the notice required by law, they could not authorize the plaintiff’s tenants to do so. It is a wise provision of law that requires public notice of a sale of property under an execution, and neglect by defendants to give such notice cannot be excused by showing that the sale was made for an adequate price. There is no evidence that plaintiff’s brother, who was plaintiff’s agent for the management of the farm, ever consented to the irregularity, or that plaintiff’s tenants, who did consent, had any authority to do so.

All concur. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.

Judgment reversed on the law and new trial granted, with costs to the appellant to abide the event.