I feel constrained in this case to- vote for reversal, I agree with the majority of the court that the statute in question is constitutional, but I can find no decision to the effect 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, constitutes only an irregularity. The record discloses that the disregard was intentional, and that it was based upon the decision of the Court of Appeals in Abbott v. Gurram (98 If. T. 665), which case is cited as authority *508upon this point in the opinion of the presiding justice, and I understand is.also the basis for. the conclusion of Mr. Justice Bartlett in his memorandum to the. effect that we are constrained by- authority to hold that intentional violation of the law is a mere irregularity. The case of Abbott v. Curran (supra) was decided before the present statute was passed. The statute in effect at that time was chapter 439 of the Laws of 1876, which provided that “All sales of' real estate made in the county of Kings .under judg. ment or decree of any court, except sales in action of partition and where the sheriff of said comity is a party, except where both parties to a suit agree upon a referee to be appointed by the court, shall be made by the sheriff of the county of Kings.” In the case cited all the parties who appeared in the action had consented that the sale should be made by a referee. One party who did not appear failed to consent, and that party was an absentee. It is very apparent that the decision of the Court of Appeals rested' upon the statement to be found.in the memorandum of- opinion at page 667 that “The court apparently held and decided that the consent of all those appearing under such circumstances was a compliance with the statute.” ' The court added that if this was error, that is, if it was error to assume that the consent of all the parties to the suit who had appeared was a compliance with the statute, such error did not render the appointment of the referee illegal or the sale by him void. It is very plain that a decision to the effect that certain circumstances constituted a compliance with the statute is not authority for the proposition that a failure to comply in any degree is a mere irregularity. Moreover, the case of Abbott v. Curran was decided in 1885. The statute now under consideration was passed in 1889, and constitutes chapter 167 of the laws of that year. It appears to have been enacted for the purpose of meeting the ruling in the case cited, for it provides that “All sales of real estate made in the county of Kings under judgment or decree of any court, except sales in actions of partition, and where the sheriff of said county is a party, and excepting where all the parties to the suit, both those who do and these* who do not appear, shall execute and' file a written stipulation in due form consenting to a sale by a referee, shall be made by the sheriff of the said county of Kings.” The difference between the two statutes is apparent at *509a glance, and consists in a change which expressly meets and negatives the ground upon which the case of Abbott v. Curran was decided.
Under the circumstances it seems to me only just that the risk and expense of an ultimate decision that the title is good should not be cast upon the purchaser.
Order affirmed, with ten dollars costs and disbursements.
Sic.