Dickinson v. Dickey

Decided September 15, 1878

New York Supreme Court · decided 1878-09-15

Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure. On the sixth day of February, 1877, judgment of foreclosure and sale was made and entered in this action. The plaintiffs and all of the defendants, except the defendant George P. Clark, con.sented to the appointment of Cl. M. Stevens as referee to sell the mortgaged premises.

Decided 1878-09-15

Gilbert, J.:

¶1The sale by the referee, instead of the sheriff, was in accordance with the judgment. At most, it was a mere irregularity in practice. The parties to the suit might waive it, and that is the test between an irregularity and a nullity. (Clapp v. Graves, 26 N. Y., 418.) The court had jurisdiction of the parties and of the subject-matter. The judgment, therefore, was valid, even if it was erroneous in directing the sale to be made by a referee. We are of opinion, therefore, that the objection to the title is not a good one.

¶2Judgment accordingly, with costs to the plaintiff.

Presents-Barnard, P. J., Gilbert and Dykman, JJ.

¶3Judgment for plaintiff upon submitted case.