51 How. Pr. 297 | New York Court of Common Pleas | 1875
— This action was brought on the equity side of the court to restrain the defendants from interfering with the plaintiff in his possession of premises No. 33 Ridge street, in
It appears that the plaintiff was in possession of the premises in question under two written leases made to him by Philip Levy, in May and June, 1870. On the 8th day of February, 1871, a judgment of foreclosure and sale of said .premises was entered in the supreme court in an action entitled Rathjen agt. Levy, which had been brought to foreclose a mortgage made in 1869. To this action the plaintiff was not made a party. The premises were sold under the said judgment and Frederick Weinecke became the purchaser thereof, and took title to the same subject to the plaintiff’s leases.
On the 2íth day of February, 1871, a judgment of foreclosure and sale of the said premises was entered in the supreme court in an action entitled Ruck agt. Anthes, which was brought to foreclose a mortgage made in 1866, to which action the plaintiff Rawiszer was made a party. On the 13th day of April, 1871, Frederick Weinecke became the owner of this judgment, and on the following day the said premises were, by his direction, sold under that judgment, and the defendant Richard Hamilton became the purchaser thereof. On the 22d day of September, 1871, the referee’s deed was delivered to Hamilton. Subsequently a writ of assistance was issued by the supreme court upon the application of the defendant Hamilton, and on the 2d day of October, 1871, the sheriff ejected the plaintiff and put Hamilton in possession of the premises.
It is claimed on the part of plaintiff that Hamilton, in becoming the purchaser of the premises in question, did so in fraud of the plaintiff’s rights ; that he was merely acting for Weinecke; that the two conspired together with the view of ousting the plaintiff, cutting off his leases and depriving him of the benefit and possession of the said premises. However
It is, however, contended on the part of the plaintiff that the debt was merged in the decree of foreclosure; that the mortgage became thereby extinguished (The People agt. Beebe, 1 Barb., 379); that Weinecke, by paying the amount of the decree and costs, satisfied the same; that the subsequent sale of the premises was absolutely void, and that consequently the writ of assistance will not avail the' defendant Hamilton. This view is based on the assumption that Weinecke did not at any time take an assignment of the judgment.
But the testimony, on the part of both the plaintiff and defendant, is to the effect that the judgment, or decree, was assigned to him, and judge Robinson has so found. It is true the learned judge in his finding refers to the deed of assignment ; and from an inspection of that it appears that it is
The judgment of the special term should be affirmed.
J. F. Daly, J., concurred.
— The writ of assistance can be obtained only iq)on a motion to the court of which the party in possession has notice (Devancene agt. Devancene, 1 Edw. Ch., 272; Valentine agt. Teller, 1 Hopk, 422). The plaintiff, when the writ was applied for, had the opportunity of stating any objection that there was to granting it; and the writ having been allowed he was concluded by it. But in addition to this the purchaser under the first foreclosure had a right to purchase the judgment obtained upon the second foreclosure, to which the plaintiff was a party, or to buy at the sale, and it was wholly immaterial whether he bought himself 'Or got the defendant to purchase it for him.
I agree, therefore, that the judgment should be affirmed.