People ex rel. Vogler v. Palmer , 23 N.Y. Sup. Ct. 136 ( 1878 )

BakNABD, P. J.:

The relator made an affidavit, setting forth that he was the assignee of oue A. S. Wheeler, who purchased a lease for a thousand years at a tax sale in the city of Brooklyn; that defendant was in possession of the lands described in the lease. Upon this affidavit he procured a summons under the statute providing for the recovery of possession as between landlord and tenant (2 R. S., 513), as amended by chapter 193, Laws of 1849. This statute provides for the recovery of lauds sold under execution. Chapter 384, Laws of 1854, title 5, section 33, extends the right to recover summary possession under the statute to the grantee at tax sales in the city of Brooklyn. At the return of the summons, the defendant made aird filed an affidavit that the tax was illegal, the sale was invalid, and the tax title worthless, and denying all the principal facts alleged in the landlord’s affidavit. The hearing was adjourned for a few days, and at the adjourned day, when the parties appeared for trial, the defendant filed another affidavit. In this affidavit the defendant made oath that he had acquired title to the premises after the tax sale, by deed from the owner, and that he was in possession, claiming title under this deed. This-affidavit was accompained by a bond with sureties, approved by the justice, conditioned to pay the costs of any action of ejectment and the use and value of the occupation, from the date of bond to the date of the recovery of possession by the landlord. Under these papers, the justice decreed that the proceedings were stayed. We think the decision was correct. The statute as to summary proceedings, in the case of holding over after title perfected under sales by execution, provides that a stay shall be granted when such an affidavit and bond is given. (2 E. S., 516, § 46.)

In Spraker v. Cook (16 N. Y., 567), the Court of Appeals held . that all the facts averred in the landlord’s affidavit are the subjects of an issue in all cases. The affidavit on which the stay was granted complied with the statute. The statute does not require that the nature, extent or legal effect of the claim shall be stated in the affidavit. After providing for a removal of a proceeding involving doubtful questions as to real estate from a Justice’s Court to the Supreme Court, it did not call upon the justice to determine whether the tenant could make out his defense in the higher court. The statute says that the tenant is entitled to a stay on execution upon an affidavit “ that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold.” The tenant so states in his affidavit. It is not ground of error that the affidavit should have stated the title, so that the justice could determine whether it was a title.

Judgment should be affirmed, with costs.

Gilbert and DtkmaN, JJ., concurred.

Judgment affirmed, with costs.