Mitnacht v. Cocks

65 How. Pr. 84

• Court: New York City Court
• Decided: March 15, 1883
• Status: Published

Opinion

McAdam, J.

The leasehold interests of the judgment debtor were levied upon, advertised and sold as if they were personal property. This was probably legal (Allen on Sheriff's, 159). Having been advertised and sold as “ chattel ” interests they must be so regarded for all purposes in subsequent proceedings founded upon the sale. The statute invoked by the petitioner is entitled “ Summary proceedings to recover the possession of real property,” and section 2232 of the Code, under which the present proceeding was instituted provides * * * “that a person who holds over and continues in possession of real property • * * * may be removed therefrom * * * where the property has been sold by virtue of an execution against him * * * and a title under the sale lias been perfected.” These ¡provisions clearly indicate the legislative intent that in order to invoke the aid of summary proceedings there must be a sale of the leasehold interest, advertised and conducted in all respects like a sale of real property (3 R. S. [6th ed.], 638; Bigelow agt. Finch, 17 Barb., 394). These proceedings are in derogation of the common law, and magistrates clothed with the power of entertaining them must find their authority in the statute or they are without jurisdiction.

The leasehold interest having been advertised and sold as personal property, the petitioner who purchased at the sale cannot invoke the aid of the statute, which in express terms limits its operation to real property. It follows that the proceeding must be dismissed for want of jurisdiction.