171 N.Y. 277 | NY | 1902
The application of the appellant is based on an irregularity in the proceedings in that the judgment directed the sale to be made by a referee appointed by the court instead of by the sheriff of the county of Kings, as *279 required by chapter 439, Laws of 1876, amended by chapter 167, Laws of 1889. The amended statute reads: "All sales of real estate made in the county of Kings under judgment or decree of any court, except sales in actions of partition, and where the sheriff of said county is a party, and excepting where all the parties to the suit, both those who do and those who do not appear, shall execute and file a written stipulation in due form consenting to a sale by a referee, shall be made by the sheriff of the said county of Kings." No consent to the appointment of a referee was made by any party. The judge at Special Term of his own motion inserted in the decree the name of a referee in the place of the sheriff of the county, presumably on the theory that the statute was an unconstitutional invasion of the prerogatives of the court.
We have no doubt as to the constitutionality of the statute, or that the judge at Special Term should have complied with its provisions. Shortly after the enactment of the original statute a proceeding was brought to test its validity, and its constitutionality was affirmed by this court. (Kerrigan v.Force,
But though we are clear that the act is constitutional and that it was the duty of any judge holding court to comply with the legislative mandate, we think the departure from it in this case did not affect the validity of the judgment or the title acquired by the purchaser. Had any of the parties to the action appealed from the provision of the judgment directing the sale by the referee it doubtless would have been reversed and the sale ordered to be made by the sheriff. It may be also that if a party to the action had promptly moved to set aside the sale the motion would have been granted. But no such application was made. The parties are satisfied with the sale and resist the motion of the purchaser to be relieved from it. In Abbott v. Curran
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The order appealed from should be affirmed, but without costs.
PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT and WERNER, JJ., concur.
Order affirmed.