Gaskin v. . Meek

42 N.Y. 186, 8 Abb. Pr. 312, 1870 N.Y. LEXIS 37

• Court: New York Court of Appeals
• Decided: March 19, 1870
• Status: Published

Opinion

Hunt, J.

Section one of the act of 1869 (vol. 2, p. 1377), provides as follows: “ All sales of real estate hereafter made in the city and county of New York, under the decree or judgment of any court of record (except sales in cases of partition, and where the shériff of said.city and cniinty is a party), shall he made by the sheriff-of said city and county,”

The second section prescribes in detail the fees,of the sheriff on foreclosure sales. The- third section provides that cei> tain commitments by police justices shall be directed to the sheriff of said city, and prescribes his fees thereon. Section 4 prescribes, the fees of referees on sales in partition,

The title of the act. is as follows: “ An act. in relation to the. fees of the sheriff of the city and county of Mew. York, and to the fees 6f referees in sales in partition cases.”

If is evident, that the two subjects of the fees of the sheriff and the fees of referees provided for in sections 2 and 4, are referred to in the title; while the subjects of the exclusive power of the sheriff to make the sales in that city under judgments and decrees, and the power of police justices to. issue commitments • to the sheriff, are not referred to in the title. Before the passage of this act, as is now the case in other parts of the State, sales on mortgage foreclosure in the city of'Mew York, could legally be made by referees appointed under the. order of the court. By this act, this, power is taken away, and if valid, every such sale in the city of Mew York must now be made by the sheriff.

"Under the recent decisions of this court, this act must 'be held to be a local act. (The People v. O’Brien, 38 N. Y., 193; The People v. Hills, 35 N. Y., 449; The People ex rel. Bradley v. Stephens, (decided December, 1869.)

Under the same authorities, it must be held that the act embraces more than one subject, and that the subject of the exclusive power of the sheriff- of the city of Mew York to. conduct sales under the decrees of the courts of record, is not expressed in the title of said act.

The act is therefore, invalid, and the sale by a referee was valid. The order of the court below, directing that the purchaser complete his purchase, was correctly made and should be affirmed.

All concur for affirmance, except Sutherland, J,, who, having heard the case at General Term, did not vote.