I concur in the result reached by Presiding Justice Gtoodrioh, but not wholly in the views expressed in his opinion.
*507I think we are constrained by authority to hold that the action of the court at Special Term in disregarding the direction of the statute to appoint the sheriff of Kings county to sell in mortgage foreclosure suits, unless all the parties consent to the appointment of a referee, constitutes only an irregularity, for which the purchaser at the sale is not entitled as matter of right to be relieved from his purchase.
In so deciding, however, I do not wish to be understood as holding that a judge who is called upon to render a judgment of foreclosure in Kings county may properly disregard the statute in question. The doctrine which distinguishes directory from mandatory statutes cannot be invoked, in advance of judicial action, to justify such action where it ignores the provisions of a statute. It is the right of the People to have their directions complied .with, as manifested through the law-making power, no less than to have their ■commands obeyed. Unless, therefore, this special statute relating to mortgage foreclosure sales in Kings county is unconstitutional, it is the duty of judges to comply with its requirements; and wherever they fail to do so, and their action comes up directly for review, it is the duty of this court to reverse it.
I have no doubt that the statute is constitutional. The functions of the officer who sells under a decree in an ordinary mortgage foreclosure suit are not judicial but administrative; and the Legislature has not attempted in the. least to detract from the “general jurisdiction in law and equity ” conferred upon the Supreme Court by the Constitution* when it prescribes that mortgage foreclosure sales shall be conducted by the same officer who sells real estate under an execution.
Of 1846, article 6, section 6.— [Rep.