Gaskin v. Meek — 8 Abb. Pr. 312

Majority

p. 312

GASKIN against MEEK.

Court of Appeals,

April Term, 1870.

Headnote

Foreclosure.—Judicial Sale.— Sheriff’s Fees in New York.—Constitutional Law.—Local Act:

Section 1 of the act of 1869, entitled “An Act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases,”—which directs all sales of real estate in that city, except in partition, or where the sheriff is a party, to be made by the sheriff (2 Laws of 1869, p. 1377, ch. 569), is unconstitutional, because, although the act is local, the subject of the section is not expressed in the title.

The case of Gaskin v. Anderson, 7 Abb. Pr. N. S., 1, affirmed.

It seems, that, for the same reason, section 3 of the same act,—which requires certain commitments by police justices to be directed to the sheriff,—is also void. .

Appeal from an order.

This action was brought to foreclose a mortgage on real property in the city of New York.

Judgment of foreclosure and sale was recovered subsequent to the enactment of chapter 569 of the Laws of 1869 ; but notwithstanding that act, the court appointed a referee to make the sale. After sale, the purchaser refused to take the title, assigning as an objection that the sale was' not made by the sheriff, as required by that act. ‘

The supreme court, in the first district, ordered the purchaser to complete his purchase; and he now appealed to the court of appeals.

The decision below is reported under the name of Gaskin v. Anderson, 7 Abb. Pr. N. S., 1. There were two cases precisely similar, and it was agreed that the

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one should abide the event of the other in the court of appeals.

William, Henry Arnoux, for the appellant.

John Henry Hull, for the respondent.

Section 1 of the act of 1869 (2 Laws of 1869, p. 1377, ch. 569) provides as follows :—“ All sales of real estate hereafter made in the city and county of New York, under the decree or judgment of any court of record (except sales in cases of partition, and where the sheriff of said city and county is a party), shall be made by the sheriff of. said city and county.”

Section 2 prescribes in detail the fees of the sheriff on foreclosure sales. Section 3 provides that certain commitments by police justices shall be directed to the sheriff of said city, and prescribes his fees thereon. Section 4 prescribes the fees of referees on sales in partition.

The title of the act is as follows : “An Act in relation to the fees of the sheriff of the city and. county of New York, and to the fees of referees in sales in partition cases.”

It is evident that the two subjects of the fees of the sheriff and the fees of referees, provided for in sections 2 and 4, are referred to in the title, while the subject of¡ the exclusive power of the sheriff to make the sales in that city under judgments and decrees, and the power of police justices to issue commitments to the sheriff, aré not referred to in the title. Before the passage of this act, as is now the case in other parts of the State, sales on mortgage foreclosure in the city of New York could legally be made by referees appointed under the order of the court. By this act this power is taken away, and if valid, any such sale in the city of New York must now be made by the sheriff.

Under the recent' decisions of this court, this act

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must be held to be a local act (People v. O'Brien, 38 N. Y., 193 ; People v. Hills, Id., 449; People ex rel. Bradley v. Stephens, decided December, 1869).

Under the same authorities, it must be held that the act embraces more than one subject, and that the subject of the exclusive power of the sheriff of the city of Hew York to conduct sales under the decrees of the courts of record, is not expressed in the title of said act.

The act is therefore invalid, and the sale by a referee was valid. The order of the court below, directing that the purchaser complete his purchase,.was correctly made, and should be affirmed.

Order affirmed with costs.