Majority
p. 352Grant B. Taylor, App’lt, v. Frank Wynne and Hannah Wynne, Resp’ts. (Supreme Court, General Term, Second Department, Filed February 10, 1890.)
Headnote
Judgment—Not a lien on leasehold interest where only two years REMAIN UNEXPIRED.A judgment is not a lien upon the judgment debtor’s interest in an unexpired term of a lease which has only two years to run.
Appeal fpom order of the county judge of Westchester county dismissing summary proceedings.
p. 353
These proceedings were brought to dispossess lessees of real property, whose interests therein had been sold by the sheriff, for $252, upon an execution against Frank Wynne, upon a six days notice of sale.
The county judge dismissed the proceedings on the sole ground that he had no jurisdiction thereof under §§ 2232 and 2236 of the Code of Civ. Pro.
The execution was issued upon a judgment recovered against Frank Wynne for $46.04, a transcript thereof having been filed in the clerk’s office of Westchester county on the 26th of March, 1888.
On the 1st of April, 1885, Frank Wynne rented the property of Ann Jane Mclntee, for the term of five years from said date, and on'the 4th of April, 1888, he assigned his right in and to-said lease and property unto his wife, Hannah Wynne.
After the sale and delivery of certificate by sheriff, a ten days notice requiring possession was duly served, and the proceedings duly and regularly commenced by the appellant herein.
Grant B. Taylor, app’lt in person; Francis Larkin, for resp’ts.
Only two years of the lease were yet to run; it was, therefore, not real estate, Code § 1430, and the judgment docketed on March 26th was not a lien upon it. It follows that the assignment of the lease by defendant on April 4th carried a clear title to the assignee.
The execution against defendant was not issued till May 25th.
The lease was not at that time the property of the defendant in the execution, was not subject to the lien of the judgment, and the attempted sale upon the execution was ineffectual to vest any title in the vendee.
All these facts appeared in the petition, which was properly dismissed.
Order affirmed, with ten dollars costs and disbursements.
Barnard, P. J., and Dykjian, J., concur.