1 N.Y.S. 261 | N.Y. Sup. Ct. | 1888
There does not seem to be any ground for interference with the order of the court below because of the misrepresentations claimed to have been made at the sale. The objection of the purchaser, however, that the premises are in the possession of a tenant under a lease for five years, who is not a party to the action, seems to be fatal to the right of the court to compel him to complete. The purchaser is not bound to take the title unless he can be put into possession under the decree of sale. In the case at bar the party in possession is not a party to the action, and is not bound by the provisions of the decree. The purchaser, to obtain possession, must bring ejectment in order to oust this tenant. It is no answer to this objection that the
It is urged that, the tenant being merely a squatter, he could be ejected, summarily under subdivision 4 of section 2232 of the Code. This devolves the burden upon the purchaser to establish the fact that the tenant is merely a squatter by independent proceedings, which task he is not bound to undertake. A purchaser must be able to get possession by virtue of the decree, and, if independent proceedings are necessary, he should not be required to take. The order appealed from should be reversed, with $10 costs, and disbursements, and the motion made denied.
Daniels and Brady, JJ. concurring.