Baird v. Van Vechten

44 Misc. 279, 89 N.Y.S. 879

• Court: New York Supreme Court
• Decided: July 15, 1904
• Status: Published

Opinion

Spencer, J.

A writ of assistance is the process by which the court puts a party into possession of specific property, the possession of which has been awarded to him by the judgment. The judgment is the sole justification for the-writ. A writ of assistance should not run to accomplish something which a judgment has not required to be done.

The judgment here does not award to the plaintiff possession of the premises sought to be acquired by the writ of assistance. The action was not brought to recover possession of any specific, real or personal property, but was inequity to obtain an adjudication setting aside a certain conveyance of real and personal property executed by the plaintiff’s ward to the defendant. After trial interlocutory judgment was entered setting aside the conveyance as fraudulent and directing the defendant to account before a referee for his use and occupation of the premises and property and the expenses incurred by him in relation thereto. Immediately upon the entry of such interlocutory judgment, application for the writ of assistance to put the plaintiff in possession of the premises was made and granted. I am of the opinion that the judgment does not justify the writ. There is no adjudication by the court that the plaintiff shall be put into possession. The plaintiff invokes the rule of lis pendens, and, if it clearly appeared that notice of the pendency of the action was filed prior to the talcing of possession by the applicant, the rule invoked should be enforced without regard to any questions of conscience or equity, because the maintenance of the rule is necessary for the self-preservation of the courts, and any laxity in its enforcement would lead to public mischiefs far greater than .could result from any harshness in its application in any particular instance. It is only by the strict enforcement of this rule that courts are able to enforce their judgments and prevent their being made abortive by subsequent alienations.

But the commencement of the lis pendens is the point of time at which the court acquires jurisdiction of the res, and the determination of that point of time in respect to strangers, persons not parties to the action, sometimes becomes a difficult and complicated question of fact. Without deciding the interesting question discussed by counsel upon the argument and in their briefs as to whether the applicant Houghton is in occupation of the premises as lessee of the defendant or as a cropper under a contract for service, actual possession of the premises by him at the time of the commencement of the action was notice to the plaintiff of any equitable or legal right which he might have by virtue of either relation. The question whether he was or was not in possession at the time is also in dispute and involved in some doubt. All the questions of fact from which to determine whether he should be regarded as an ante litem claimant or a pendente lite claimant should be left to be determined by the plaintiff in an action where the question of the possession of the property is involved and where the rights of each may be safeguarded.

Furthermore, the issuance of a writ of assistance is not a strict matter of right, but rests in the sound discretion of the court. The enforcement of this writ at this season of the year would result in great injustice and hardship to the applicant who, without notice of the incompetency of plaintiff’s ward or of the defendant’s fraud, has gone into occupation and cultivated the crops nigh to harvesting, and to dispossess now would occasion an injury for which there would be no adequate remedy. The plaintiff is, no doubt, subrogated to the rights of the defendant under the contract with Houghton, and may claim the fruits of the farm in accordance therewith, and if Houghton’s husbandry be not satisfactory, he may revoke the agreement at the expiration of the year as by the agreement provided. In. this way justice may be accomplished for each party and the rights of none endangered.

Let an order be entered modifying the order as to the applicant Houghton and exempting him from its operations, with costs.

Ordered accordingly.