115 Misc. 233 | New York County Court, Erie County | 1921
For several years prior to January
1,1916, the defendant Edward H. Goetz was the owner of certain premises ,on Delaware avenue in, the city of Buffalo, upon which there was a mortgage to the Albany County Savings Bank. Mary T. Goetz, the defendant, is the wife of said Edward H. Goetz, but they have been living apart from each other for several years.
Sometime in 1915 an action to foreclose the Albany County Savings Bank mortgage was begun, and both Edward H. Goetz and Mary T. Goetz, his wife, were parties to the action. The foreclosure action was carried through to the finish, and the property covered by the mortgage was sold by a referee, and by a deed given by the said referee, dated January 7, 1916, and recorded in the Erie county clerk’s office on January 8, 1916, the property was conveyed to the Borderland Realty Corporation, which retained’ the title to the same until March 17, 1921, when it conveyed the property to one Hilda W. Chadwick, who is now the record owner of the same and is seeking to obtain possession thereof from Mary T. Goetz, under an order granted by this court pursuant to the provisions of section 1675 of the Code of Civil Procedure.
After the order was granted directing the sheriff to put said Hilda W. Chadwick in possession of the property, Mary T. Goetz applied to the, court for an order to show cause why the order putting., Hilda W. Chadwick in possession should not be-vacated, and the question to be determined by the court is whether or not said Hilda W. Chadwick has the right t'ó the relief which she is seeking, or whether ’ her, order should be vacated and set aside.
The affidavits show that sometime after the sale, the exact date not being fixed, a demand for the actual physical possession of the property was made upon Mary T. Goetz by the duly authorized representatives of the Borderland Realty Corporation, but that she never surrendered the actual possession of the property, and that the Borderland Realty Corporation never actually acquired the physical possession of the property.
It is the contention of Mary T. Goetz that the foreclosure of the mortgage upon the property and the transfer of its title to the Borderland Realty Corporation was a subterfuge on the part of her husband,
During the time that Mary T. Goetz has occupied the premises she has made no effort to have her rights established through legal action. She had notice that the property was being sold, and was asked by the purchaser about two weeks prior to the granting of the order to vacate the premises on April first, and this she failed to do; neither did she notify the purchaser of any rights.
I think that the court in issuing the order provided for under section 1675 of the Code, should be guided by the facts in each particular case, and that the lapse of time alone is not sufficient reason for refusing to grant such an order. If upon an examination of all the facts in a particular case the court deems it is for the best interests of all concerned that the order should issue, then the court is justified in granting the relief provided by said section.
Since the Borderland Realty Corporation was never put into actual physical possession of the premises, and as the said Hilda W. Chadwick is the successor to all the right, title and interest of said Borderland Realty Corporation, and the said Mary T. Goetz had her day in court before the property was conveyed to the Borderland Realty Corporation, and as she has taken no steps since the said corporation acquired the property tg assert any claim that she may have
Ordered accordingly.