O'Rourke v. Henry Prouse Cooper & Co. — 3 N.Y. St. Rep. 552

Majority

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Jeremiah O’Rourke, Pl’ff, v. The Henry Prouse Cooper & Company, the Nippon Mercantile Company et al., Def’ts.

(New York Superior Court, Special Term,

Filed November, 1886.)

Headnote

Jurisdiction—Of New York superior court to restrain summary

PROCEEDINGS BEFORE A JUSTICE—LEASE—WHEN A CHATTEL REAL—

Code of Civ. Pro., §§ 1430 to 1478—When period of redemption does not apply.

On the facts of this case: Held, that the superior court as a court of equity has power to restrain summary proceedings before a justice. That the lease of Henry Prouse Cooper being for ten years, was a chattel real; that the lien under the judgment recovered in 1883 attached and the lease was properly sold thereunder; that the sheriff’s certificate of sale was sufficient to give the purchaser title; that though sold as a chattel real, the lease having at the time of sale less than three years to run, the period of redemption did not apply, and sections 1430 to 1478 Code Civ. Pro. did not apply to such a case; that the court has power to direct the payment of money into court by a tenant.

Samuel M. Meeker, as executor, etc., let the premises, No. 292 Fifth avenue, to Henry Prouse Cooper for the term of ten years from May 1, 1870. Cooper at this time sublet portions of the premises to the Nippon Mercantile Company of 310 Broadway for the same period. Both these leases were recorded. In October, 1883, Cooper assigned the lease from Meeker to the Henry Prouse Cooper & Company. After the assignment, the Nippon Mercantile Company paid rent to the Henry Prouse Cooper & Company.

William L. Flagg obtained a judgment by default against Cooper in July, 1883. This default was vacated for a trial on the merits, the judgment then obtained being allowed to stand as security. In May, 1886, the referee, to whom the case was referred, reported in favor of Flagg, and a judgment was entered on the confirmation of that report May 26, 1886. Flagg issued an execution on this judgment which was returned unsatisfied. He then issued another execution on the judgment recovered July 3, 1883, and under that execution the sheriff sold as a chattel real the interest of Henry Prouse Cooper which he had in the above lease on July 3, 1883. Motions were made to set these executions aside on the ground of various irregularities, which were denied. Jeremiah O’Rourke became the purchaser of Cooper’s interest at the sheriff’s sale, and notified the tenants of the building 292 Fifth avenue of his purchase and demanded from them the rent due. At the time of the sale O’Rourke received a sheriff’s certificate of sale, but no deed was given.

The Nippon Mercantile Company refused to pay the rent due and summary proceedings were commenced against it in the sixth district court by the Henry Prouse Cooper and

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Company. These proceedings were stayed by injunction and the case removed to the superior court.

The motion to continue the injunction was heard by Ingraham, J.

Wm. L. Flagg, for plt’íf; F. F. Van Derveer, for Henry Prouse Cooper & Co.; Charles H. Murray, for Nippon Mercantile Co.

The general term of this court, in the case Flagg v. Cooper et al, held that the execution issued in that action under which the sale by the sheriff was made was valid, and that decision is binding upon me on this application.

I think this court has jurisdiction to restrain the execution of a warrant to disposses where it appears that since the making of the lease the title of the lessor to the leasehold premises has been divested, and where that question can not be properly disposed of by the justice. It was so held in Gilman v. Prentice, reported in the Daily Register of November 9, 1886.

The only question remaining is whether the plaintiff has obtained by the sale under the execution a valid title to the lease held by the defendants, The Henry Prouse Cooper

By section five of article first, of title two of the Revised Statutes, seventh edition, page 21J5, it is provided: “Estates-for years shall be chattels real.” The interest, therefore, of Henry P. Cooper and Co., at the time of the entry of the judgment in favor of Flagg against Cooper, was therefore a chattel real.

By section 1251 of the Code it is provided: “Except as otherwise specifically prescribed by law, a judgment hereafter rendered, and which is docketed in the county clerk’s office, as prescribed in this article, binds and is a charge upon—ten years after filing the judgment roll and no longer—the real property and chattels real in that county which the judgment debtor has at the time of so docketing it, of which he acquires at any time afterwards and within the ten years.”

By the docketing of that judgment against Henry P. Cooper the plaintiff acquired a lien upon a lease of the premises in question. Under the execution issued on that judgment the sheriff advertised the leasehold property for sale, and on the 24th day of July, 1886, sold to the plaintiff all the right, title and interest of Henry Prouse Cooper that he had on the 3d day of July, 1883, in and to the lease herein described, and duly delivered to the plaintiff in this action a bill of sale therefor. The sale appears to be

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regular, and so far as appears the sale was made in accordance with the provisions of the Code for the sale of personal property. Article 3, sections 1430 to 1478, do not apply to a sale under this execution, because at the time of the sale they had less than three years to run.

By section 1430 it is provided that the expression real property, as used in this and the succeeding article, include leasehold property, where the lessee or his assignee is possessed at the time of the sale of at least five years unexpired term of the lease. The leasehold interest not being real property, it must be sold as personal property and upon the sale under the execution the property sold vested immediately in the purchaser.

I think, therefore, on the facts as they appear in this application that the plaintiff has obtained a valid title to the lease by the sale under the execution. The defendant, the Nippon Mercantile Company, having appeared and asked leave to pay the amount of rent due into court, if such payment is made to the credit of the' action within ten days after the service of the order on this motion, the injunction wifi be continued against the defendant, the Henry Prouse Cooper & Co., restraining them from executing any warrant to dispossess the Nippon Mercantile Company until the further order of this court.

Plaintiff tó have ten dollars of this motion, to abide the ■event. _