Getman v. Ingersoll — 26 N.Y. St. Rep. 660

Majority

p. 660

Van Rensseaer Getman, as Ex’r., App’lt, v. Alonson B. Ingersoll et al., Resp’ts.1

(Court of Appeals,

Filed October 15, 1889.)

Headnote

Appeal — Action affecting title to real property — Code Civ. .Pro., § 191.

Where pending an action brought to set aside a judgment for less than $500, the sheriff sells real estate worth $1,000 under such judgment, and the grantee is made a party by supplemental complaint, an appeal may be taken to this court from a judgment that such sale was regular, etc., as the action affects title to real property under $ 191, Code Civ. Pro.

Motion to dismiss appeal.

Esek Cowen, for motion; M. L. Wright, opposed.

See 49 Hun, 611 , mem.

This action was originally brought by Daniel Hetman against the defendant Ingersoll, and the relief demanded in the complaint was that a judgment for about $150, which had been recovered by Ingersoll against the plaintiff, be satisfied, and that Ingersoll be forever restrained from selling any of the plaintiff’s property by virtue thereof.

Subsequently, by virtue of an execution issued upon the judgment, and while the action was pending, the sheriff sold real estate of the plaintiff worth about $1,000, and in pursuance of'that sale a deed was afterward given to the defendant Rulison. There

p. 661

after plaintiff made Rulison a party defendant and served a supplemental complaint in which he prayed judgment that the .sale be set aside, that the judgment be satisfied and discharged of record, that the defendants be restrained from selling or offering for sale the premises described in the complaint and that he be allowed to redeem them.' The defendants put the action at issue by their answers and the cause was referred to a referee and tried before him. lie found that Ingersoll’s judgment was a valid judgment,, that the sale under it was regular and that the defendant Rulison acquired a good title to the land sold, and he dismissed the complaint. The plaintiff then appealed to the general term where the judgment was affirmed, and he then appealed to this court

This motion is made to dismiss the appeal upon the ground that it is unauthorized by the Code, and that this court has no jurisdiction to entertain the same.

When the action was originally commenced, as Ingersoll’s judgment was simply a lien upon the land, it did not affect the title to real property or any interest therein, and as the matter in controversy was less than $500, an appeal could not have been taken to this court from any judgment entered in the action. But before the original action came to trial there was a sale under an execution issued upon that judgment, and the plaintiff was divested of the title to land worth $1,000, and when the action finally came to trial the title to that land came in controversy. The plaintiff sought to have Rulison’s title set aside, and to be reinvested with the title, and the court below denied him relief. Under such circumstances it cannot be said that the action does not affect the title to real property, or an interest therein within the meaning of § 191 of the Code.

The motion should, therefore, be denied with costs.

All concur.