Luker v. Fitzer
New York County Courts
Action for the foreclosure of a mortgage. Upon a judgment of foreclosure and sale in the usual form, the referee conducted a sale herein.
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Action for the foreclosure of a mortgage. Upon a judgment of foreclosure and sale in the usual form, the referee conducted a sale herein. The terms of the sale, which were read at the time, contained the following: “ This sale is made subject to all the rights of one Anna Ludwig under a certain quit claim deed from Orville Balch and wife, dated January 31, 1916, and recorded in the Oneida County Clerk’s office February 7,1916, in Book of Deeds No. 725, page 33, and also all the rights of said Anna Ludwig in a certain action in the Supreme Court wherein she is plaintiff and Warren H. Kinney…
1Opinion of the CourtHazard, J.
This motion is based largely upon the authority of Mullins v. Franz, 162 App. Div. 316, in *310which case the court said: “A referee who is directed by a judgment to sell certain described real property cannot insert in the terms of sale on his own motion or at the suggestion of the plaintiff or his agents a provision that the premises are sold subject to a vague, indefinite, uncertain outstanding interest in another.” Also, “ The referee has no power or authority except the judgment of the court. He cannot vary the judgment. He cannot make a sale except in compliance with it. He can sell neither…
2Cases cited4 opinions
- Mullins v. FranzAppellate Division of the Supreme Court of the State of New York · 1914
- Cromwell v. . HullNew York Court of Appeals · 1884
- Bache v. . DoscherNew York Court of Appeals · 1876
- Ritter v. DevineNew York Supreme Court · 1894