Getting v. Mohr

41 N.Y. Sup. Ct. 340

• Court: New York Supreme Court
• Decided: December 15, 1884
• Status: Published

Opinion

Barnard, ,P. J.:

Summary proceedings may be instituted to remove a personTwho holds over and continues in possession of real property after it has been sold by virtue of an execution against him, and a title under the sale has been perfected. (Code, § 2232.) The affidavit upon which the summons was issued was very full, setting forth not only the judgment under which the sale was made, but also the filing of a transcript in Suffolk county where the land was situated and where it was sold. The affidavit upon the return of the summons was a general denial. Upon the trial before the jury no proof was given of the filing of the transcript in Suffolk county. The record was proven to have been filed in Kings county, and was produced on the trial. The sale was proven and that a title had been perfected under it. This was all that the plaintiff was called upon to establish. It was not the proper place to try collaterally the validity of the judgment. When a sale by execution was proven, and the sale had been made effectual by the sheriff’s deed, this was all that was required by the Code to confer jurisdiction on the magistrate. (Spraker v. Cook, 16 N. Y., 567; Brown v. Betts, 13 Wend., 30.) The case does not fall within the principle of the cases cited by appellant, that when a title is.taken by law the law must be strictly followed. The title was not taken by the summary proceédings, but a remedy was given by law to recover speedy possession of premises when the title had passed away from the owner by judgment proceedings.

The judgment should be affirmed, with costs.

Dtkman and Pratt, JJ., concurred.

Judgment of County Court affirmed, with costs.