Koelsch v. Kendall

76 Misc. 367, 136 N.Y.S. 838

• Court: New York Supreme Court
• Decided: April 15, 1912
• Status: Published

Opinion

Bijur, J.

Motion to compel the withdrawal of the publication of notice of sale by the sheriff of certain lands, and to stay all proceedings relating thereto. Plaintiff, having "recovered a judgment of foreclosure against defendant and others, filed a judgment-roll December 20, 1899. The judgment provided for a sale of the premises by a referee, that the referee should specify the amount of the deficiency, if any, and that plaintiff should have execution therefor. The sale took place • Jánuary IT, 1900. The referee’s report, showing a deficiency, was filed January 16, 1900; The judgment for the deficiency was docketed May 22, 1903. Plaintiff obtained an order granting. him leave to issue execution February 26, 1912. ‘Section 1251 of the Code reads: “ Except as otherwise specially provided by láw, a judgment,- * * *. is a charge upon, for ten years after-filing the judgonent roll, and no longer, the real property, etc.” The defendant claims that the lien upon his property.¡under this judgnient extended for .ten years from December 20, 1899, only, and had therefore expired before ■the'present order for «execution was obtained (apparently under section T3TT of-'the-Code)'. 'Plaintiff claims that sec- ' tion T25T is limited'by section T2J2 to -apply only to judgments wholly or' partly fór á sum of money,' and that a judgement, of.,foreclosure is npt such "a judgment. Defendant claims that a judgment for deficiency i§ such a judgment. In either event I do not understand on what theory the plaintiff claims his judgment for deficiency to he a lien for a period of ten years beginning at any date other than in 1900 at the time either of the filing of the judgment-roll or (by liberal interpretation of that term) at the time of the filing of the referee’s report of the sale and his report of the amount of the deficiency. If section 1251 covers this judgment, then the' year 1900 would be the correct date from which to calculate the ten years-. If it does not cover this judgment there seems to be no provision — or at least plaintiff cites none — which makes his judgment a lien upon real estate. The point is made in plaintiff’s brief that defendant

■ has no present interest- in or title to the property, and therefore shows no right to the relief here prayed for. But the moving papers present no facts upon which this claim is .based; there is no statement in them as to the present title .or interest of the defendant. The notice of sale relates to

“ all the right, title and interest that defendant had on the 22d day of May, 1903, or at any time thereafter.” As the' attempt to enforce this execution manifestly proceeds on the theory that the lien of the judgment still attaches, I find

■ that defendant’s motion- must be granted.

Motion granted.