In re Burdikoff

251 A.D. 826, 296 N.Y.S. 609, 1937 N.Y. App. Div. LEXIS 7853

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1937
• Status: Published

Opinion

Order denying application of petitioner, Stephen Burdikoff, to declare invalid a certificate of redemption issued by the sheriff of Nassau county to John W. Zawojski and to direct the sheriff to issue a certificate to petitioner, reversed on the law, with ten dollars costs and disbursements against respondent Zawojski, and motion granted, without costs. At the time Zawojski, a judgment creditor, attempted to redeem the property sold pursuant to the judgment of a junior judgment creditor, he failed to deliver to the sheriff a certificate satisfying his judgment in whole or for a specified amount. Therefore, he was not in a position to redeem and not entitled to a certificate of redemption. A redeeming creditor must deliver a satisfaction of his judgment at the time he exercises his right to redeem. (Civ. Prac. Act, §§ 728, 741; 5 Carmody’s New York Practice, § 1671, p. 3861.) The failure to do so is a fatal defect which renders the redemption ineffectual. This defect cannot be cured by delivering the satisfaction several weeks later and after another creditor had exercised his right of redemption. The redemption by a creditor is effected only when he complies with all the requirements of the statute and a waiver of any of these requirements is void as against any subsequent redeeming creditor. (Civ. Prac. Act, § 746.) “ The mode of obtaining title to land sold under execution by redemption, is wholly a creation of the statute, and its provisions must be strictly followed.” (Gilchrist v. Comfort, 34 N. Y. 235, 239. See, also, Morss v. Purvis, 2 Hun, 542; affd., 68 N. Y. 225; Benton v. Hatch, 122 id. 322; 5 Carmody’s New York Practice, § 1664, p. 3846.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.