Comrie v. Kleman

Headnote

Comrie v. Kleman, 162 App. Div. 510 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 10, 1914, affirming á judgment in favor of

defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action is by a purchaser at a sheriff’s sale to compel the executors of John Schnugg, deceased, to pay over one-third of the proceeds of the sale of certain specified parcels of real estate. John Schnugg died July 3, 1901, leaving real and personal estate. He had a son, Francis J. Schnugg, and two daughters, and by his will he devised and bequeathed to his son Francis J. Schnugg one undivided one-third part of his real and personal estate. The other two-thirds he left in trust for his daughters. A power of sale was given to the executors and as the debts exceeded the amount of the personal property it became necessary to sell a portion of the real estate for the. payment of debts. On May 6, 1902, the United States Mortar Supply Company recovered a judgment for $490.55 against Francis J. Schnugg, and on May 9, 1902, the same plaintiff recovered a second judgment against said Francis J. Schnugg for $350.02. Execution was issued on both judgments and returned unsatisfied. On January 25, 1905, the sheriff of New York county offered for sale all the right, title and interest of Francis J. Schnugg, which he had at the date of the aforesaid judgments, in the parcels of real estate specified in the complaint, and at such sale plaintiff became the purchaser. In the meantime, however, between the date of the recovery of the judgments and the date of the sheriff’s sale, the executors of John Schnugg, deceased, had sold the parcels described in the complaint and in the sheriff’s advertisement of sale and had applied all of the proceeds to the payment of the debts of John Schnugg, deceased.