Cunningham v. . Cassidy
New York Court of Appeals
Appeal from an order of the Supreme Court, made upon an application for surplus moneys arising upon a sale of mortgaged premises upon a foreclosure. The foreclosure was upon a mortgage executed by Cassidy to Cunningham, in 1846. There was a surplus of $1205.26, after paying the mortgage debt and the costs of the foreclosure suit, which was paid to the treasurer of Kings County.
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Appeal from an order of the Supreme Court, made upon an application for surplus moneys arising upon a sale of mortgaged premises upon a foreclosure. The foreclosure was upon a mortgage executed by Cassidy to Cunningham, in 1846. There was a surplus of $1205.26, after paying the mortgage debt and the costs of the foreclosure suit, which was paid to the treasurer of Kings County. Richard T. Williams claimed the surplus as the owner of the equity of redemption, and the claim was referred to W. E. Smith as a referee, to report upon its validity, and to ascertain the priority of the several liens,…
1Opinion of the Court
The material question in this case is, whether the sale by the sheriff of these ten lots in one parcel was void, or only voidable at the instance of a party aggrieved by the illegality. It was clearly the duty of the sheriff to sell the lots separately (2 R.S. 369, § 38); but the counsel for Williams maintains that a title passed by the sheriff's deed, though the direction of the statute was disregarded. There is a well known distinction between statutory provisions which are of the essence of the proceedings to which they relate, and without the observance of which everything which is done…
2Cases cited1 opinion
- Jackson ex dem. Vanderlyn v. NewtonNew York Supreme Court · 1820
3Cited by27 opinions
- Williams v. AllisonSupreme Court of Iowa · 1871
- Willard v. FinneganSupreme Court of Minnesota · 1890
- Osman v. TraphagenMichigan Supreme Court · 1871
- City of San Francisco v. PixleyCalifornia Supreme Court · 1862
- Nelson v. BronnenburgIndiana Supreme Court · 1881
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