Gilman v. Tucker (128 N.Y. 190, 1891)

Ruger, Ch. J.

This appeal involves the construction and constitutionality of section 1440 of the Code of Civil Procedure, as amended by chapter 681 of the Laws of 1881, relating to the sale, redemption and conveyance of real property sold on execution.

The questions arise upon the affirmance, by the General Term, of an order of the Special Term denying the defendant’s motion to set aside and vacate a judgment entered herein for the plaintiff. No claim was made, but that the judgment was regular and authorized by the evidence in the case, or that it had been paid or satisfied or that there was any statute or rule of law which required the court to set aside such judgment. The purposes of the act referred to, if valid, do not require an order of the court to render them effective. The contention is, that the defendant is entitled to the relief asked for, because the plaintiff did not, within twenty days after the recovery of the judgment, make certain payments to the defendant required by the statute, in default of which the section referred to declares the judgment to be of “ no force or effect.”

Even if it be conceded that the provisions of the Code are valid, it does not follow that the defendant is entitled, as of course, to the relief demanded. It is not required by the language of the statute, and the court might well have said, in the exercise of its discretion, that the defendant should be left to the remedies which the statute gave him, and that it would not determine the controversy in a summary way upon motion. But we are disinclined to dispose of the appeal on this point, as important questions are raised by the case which, in the interest of justice, require an early disposition.

The evidence in the case shows that previous to the commencement of this action, the defendant had, as a subsequent judgment creditor of the plaintiff, acquired the right to a deed from the sheriff, by the redemption from the purchaser upon an execution sale, of a house and lot in New York belonging to the plaintiff; and she, believing the sale to have been unauthorized and illegal, brought this action to compel a determination of the defendant’s claim under such redemption.

In answer to the action the defendant set up title in himself through the proceedings to redeem from the former judgment creditor who had bid it in on an execution sale, upon a judgment in his favor against the plaintiff. The question litigated upon the trial was as to the validity of the execution upon which, such sale was had. The trial court found that it was