Connor v. Schaeffel — 25 Abb. N. Cas. 344

Majority

p. 344

CONNOR v. SCHAEFFEL.

N. Y. City Court, Special Term;

October, 1890.

Headnote

1. City Court of N. T.; jurisdiction; writ of assistance.] The city-court of New York has jurisdiction to issue a writ of assistance to enable the purchaser at a sale in foreclosure of a mechanic’s lien to obtain possession of the premises.

2. Mechanic's lien; remedy of purchaser at sale.] Such a writ will be granted to the purchaser upon proof that he has received a deed of conveyance from the referee, which has been shown to the party in possession, accompanied by a demand of possession, which has been refused.

Motion by the purchaser at a sale in foreclosure of a mechanic’s lien that a writ of assistance issue to him.

The action was brought by Peter J. Connor against Bernhard Schaeffel to foreclose a mechanic’s lien upon certain leasehold premises belonging to the defendant. The action proceeded to judgment, under which a sale was had, at which the plaintiff became the purchaser. He received the referee’s deed, and demanded possession of the premises, which the defendant refused to surrender. He then made this application for a writ of assistance.

The affidavit on the motion was made by the plaintiff’s attorney, and alleged “ that this action was brought to foreclose a mechanic’s lien, in favor of the plaintiff against the defendant; and that on June 6, 1890, a decree was entered herein, upon the report of the Hon. Granville P. Hawes, as referee herein, in favor of the plaintiff against the defendant; that thereafter and on July 23, 1890, the referee’s deed of the premises mentioned in the mechanic’s lien was duly made, executed and delivered to the plaintiff herein ; that thereafter, on July 25,1890, the referee for sale herein reported in favor of the plaintiff on a deficiency of $1,519.11; that, as deponent is informed and believes, the plaintiff, on July 26,1890,

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upon presentation of his said deed, personally demanded of the defendant, at No. 52 West Nineteenth street, in the city of New York, the possession of said premises described in said deed, and that said defendant refused to surrender the •same, or any portion thereof herein.”

Morrison & Kennedy, for the motion.

George W. Gibbons, opposed.

The writ of assistance, so far as foreclosures are concerned, is an old chancery writ, which exists independent of the statute (4 Wait's Pr. 196). It may be had to enforce any judgment or order awarding the possession of real property, other than the common judgment, in a direct action for land (2 Tillinghast & Shearman Pr. 849, and see, also, Lynde v. O’Donnell, 12 Abb. Pr. 286 ; 21 How. Pr. 34 ; N. Y. Life Ins. Co. v. Rand, 8 Id. 35, 352 ). A writ of assistance is, in ordinary cases, the process for giving possession of land under an adjudication, and will be granted upon the sale being confirmed, and proof that the purchaser has received a deed of conveyance from the master, which has been shown to the party in possession, accompanied by a demand of possession, which has been refused (1 Barb. Ch. Pr. 531). These requirements were fulfilled here.

Section 8 of chapter 342 of the Laws of 1885, under which the lien was foreclosed, provides inter alia that the manner and form of conducting a mechanic’s lien proceeding shall be the same as the foreclosure of a mortgage. The power to foreclose was expressly conferred upon this court, and everything necessary to a complete execution of the jurisdiction goes with it. This court has the same power to issue the writ applied for as that possessed by any other court acting under the same statute. The enforcement of mechanics’ liens is a sort of equity jurisdiction, governed by •equitable rules and principles, and the old chancery writ of

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assistance is the process by which the purchaser gains the-possession to which the proceedings entitle him.

The writ has not been abolished by any express provision of the Code, nor has a substitute been provided for it by that or any other act, and, except where the judgment can be enforced by execution, the writ is still an appropriate remedy. The judgment herein cannot be enforced in respect to possession by execution, and the relief required must be obtained by this writ.

It follows that the application for the writ must be granted.

Cases cited

Lynde v. O'Donnell 12 Abb. Pr. 286 N.Y. Sup. Ct. p. 345
Lynde v. O'Donnell 21 How. Pr. 34 N.Y. Sup. Ct. p. 345