Opinion
Argued January 6, 1904
Decided February 9, 1904
Henry B. Anderson and Chandler P. Anderson for appellant.
Wilson M. Powell for respondent.
The appellant Coogan seeks to be relieved from his purchase of certain premises at the partition sale in the above-entitled action. His application is based upon various grounds, some of which have been discussed and disposed of in our opinion upon the appeal of another purchaser named Koss. ( Dresser v. Travis — Application of Koss, 177 N.Y. 371.) We have here, however, one question that was not presented in the Koss appeal, and that is whether a lease in existence at the time of the commencement of the action, and purporting to run until October 1st, 1904, upon a portion of the premises purchased by the appellant Coogan, under terms of sale reciting that "the premises will be sold subject to leases to expire May 1st, 1903," is such a cloud upon the purchaser's title as to render it doubtful and unmarketable.
At the threshold of our investigation of this question we are reminded that the unanimous affirmance by the Appellate Division of the order denying Coogan's application to be relieved from his purchase compels us to assume that all the facts necessary to support the order were established in the court of original jurisdiction.
This limitation has an important bearing on this appeal because it precludes us from considering certain matters of fact referred to and relied upon by the appellant.
The facts which we must assume to have been established at Special Term are as follows: At the time of the commencement of the above-entitled action one John V. Higgins was in possession of a portion of the premises purchased by Coogan, under a lease from M.V.B. Travis as trustee, running until October 1st, 1904. This action for partition was commenced October 29th, 1901. A notice of the pendency thereof was then duly filed, recorded and indexed. Higgins the lessee, was made a party and failed to appear or answer. He assigned his lease to J. Palm Company, the present occupants, on March 17th, 1902, and the assignment was not recorded until January 21st, 1903, or nineteen days after the entry of the interlocutory judgment herein. It is true that the interlocutory judgment, the terms of sale, and the referee's deed tendered to the appellant, all show that the sale was made subject to leases expiring May 1st, 1903, but that of itself proves nothing so far as the lease to Higgins is concerned, for that runs to October 1st, 1904.
In this connection it will be observed that the interlocutory judgment contains no provisions relating to leases, except that the eighth parcel shall be sold subject to the lease thereon, and the remainder of the premises (including those purchased by Coogan) shall be sold subject to the lettings to expire May 1st, 1903. The final judgment is silent as to all the leases, but decrees "that each of the parties to this action and each and every person deriving title to said premises from, through or under a party after the filing of the notice of pendency of this action, be forever barred of and from any and all right, title and interest in and to the premises sold as aforesaid."
Upon these facts it cannot be doubted that Higgins, the original lessee, and J. Palm Company, his assignees, are bound by the judgment herein. The appellant Coogan, therefore, took a title under which he could have invoked the mandate of the final judgment in partition to secure immediate possession of the premises purchased by him, and his objections to the title must be overruled.
The order of the Appellate Division should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, MARTIN, VANN and CULLEN, JJ., concur.
Order affirmed.