In re Georgi ( 1902 )

Thomas, S.

— The application is for an order requiring a person in possession of premises sold under a decree made by this court to surrender possession to the purchaser. The person proceeded against entered into possession during the pendency of the proceeding in which the sale was directed, claiming as a tenant under a party to the proceeding, and the right of the purchaser to have full possession of what he has paid for quite fully appears. The difficulty is that no express power is given by any statute to this court to put a purchaser in possession, and no adjudged case can be found in which that power has been sustained as being implied. The cases in which the general power of a court which lawfully directs ia sale to enforce its decree by putting the purchaser into possession were all determined in the Court of Chancery or the Supreme Court in suits or actions where the general power of a court of equity existed. The leading case on this point is Kershaw v. Thompson, 4 Johns. Ch. 609, 613. In ho ease has it been held that a court can enforce a decree of sale made, not in an action, but in a special proceeding, by putting the purchaser into possession in the absence of express statutory power. The inferences from the language of the court in Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y. 116, are directly the other way. The application must, therefore, be denied.

Application denied.