Gaskin v. Anderson

Cardozo, J.

This is a motion to compel the purchaser to take the title to premises bought by him on sale under a judgment of foreclosure. ' By the judgment entered on the direction of Mr. Justice Barnard, James W. Coleman, Esq., was appointed referee to sell, and the purchaser objects to the title upon the ground that under the act of May 4, 1869 (2 Laws of 1869, 1377, ch„ 569), such sale could only be made by the sheriff of the city and county of New York.

The plaintiff’s counsel replies that the statute relied upon is in that respect unconstitutional. As the sheriff might be interested in the question, his counsel was permitted to appear upon this motion and represent him, but he failed to assign any' reason in support of the constitutionality of this provision of the statute. Indeed, after very careful consideration, I think it will be hard to defend the constitutionality of that act in many particulars, and among others on the point in question. The statute is plainly a local bill, and therefore, according tb section 16 of the article 3 of the Constitution, it can embrace but one subject, and that must be expressed in its title. That this act does refer to more than one subject, and is within the provision of the constitution, is clear (see Pullman v. Mayor, &c., decided in General Term, 1st Dist., April, 1868, and cases there cited).

In the first place, the title of that act embraces two subjects entirely independent of and distinct from each other, viz: “Fees of the sheriff of the city and county of New York,” and “fees of referees in partition cases.”

In the next'place the act itself legislates upon those *7two different and distinct subjects by sections two and four. "

But it is only necessary to consider at present the first section of the act, because it is only under that section that there can be any pretense that the title is objectionable. That section relates to a subject in no wise expressed in the title of the act. It relates, not to fees, but to the manner in which judgments shall be executed. In other words, it attempts to regulate and chaiige the practice of the court, and to take away the right to execute its decrees according to its own judgment, which has prevailed ever since the court of chancery had its existence. Such a radical change of the practice of the court cannot be made under pretense of regulating the fees of the sheriff, and under a bill, the title of. which affords no notice that any such purpose was designed, but which simply relates to the “fees of the sheriff.” Under such a title the fees of the sheriff might be increased or diminished, but that is all that its title would suggest. These are some of the reasons which make it perfectly plain that section 1 of the act in question is unconstitutional.

It is not necessary to say whether section 2, which may well apply to such sales as the court may see fit to send to the sheriff, may not stand, nor indeed to express any opinion as to the rest of the act, so far as the sheriff is concerned.

But, apart from ail this, and without further pursuing the question of the constitutionality of the act in respect to the point before me, there are other reasons which make it clear that the motion should be granted. No consequence is declared by the statute to result from a sale being made by a person other than the sheriff.

It is not to be denied that the court making the judgment which was entered in this action had jurisdiction to make it. That being so, the question whether any of its provisions were right, which of course includes the one directing the premises to be sold by a referee, cannot be raised by a purchaser. The parties might appeal, *8or might move the court to correct or vary the judgment; "but if they do not complain, but acquiesce in the provisions of the decree, the purchaser will get a good title, and he cannot be heard to raise any objection, except that which goes to the jurisdiction of the court (Alvord v. Beach, 5 Abb. Pr., 451; Holden v. Sackett, 12 Id., 473).

In any respect in which the matter can be viewed, the objection to the title raised by the purchaser is unfounded, and the motion should therefore be granted ; but as this is the first time that the statute has been judicially construed, I think there should be no costs of the motion.

Motion granted'.*

We are informed that on appeal the order was affirmed by the court at general term, in November, no opinion being rendered.