within the spirit of those words. In receiving the sealed envelope from the voter the election official does not, in my opinion, receive it in the sense that he receives it on election day. He does not touch the ballot. He receives it and delivers it sealed. He is merely a depositary, who does not touch the ballot itself. To the extent that the act in effect abolishes the office of commissioners of election, and thus permits the distribution of ballots at the polls to absentee voters, it is void. The applicant continues in his office, at least, for the purpose of distributing the ballots to absentee voters. Motion granted. No costs. Ordered accordingly. (18 Misc. Rep. 722) GOODMAN v. SUBOTNICK. (Supreme Court, Special Term, Kings County. June, 1922.) Vendor and purchaser 130(8)-Occupancy by former tenant under stay of execution of warrant on final order held not an "incumbrance," excusing performance by purchaser. Where it did not appear that the purchaser was buying the premises, either for his own occupancy or for any other special purpose, the mere fact that the premises were in the possession of a tenant, against whom a final order had been entered in summary proceedings, because of stay of execution ordered by the court under Laws 1920, c. 137, did not relieve purchaser from the obligation of performing the contract to purchase the premises; the occupancy of such former tenant under the protection of such stay not constituting an "incumbrance," and he not being a "tenant," properly speaking, because the relation between him and the owner was one created by law, and not by contract. Action by Abraham Goodman against Philip Subotnick. Judgment for defendant. Jacob Rothenberg, of New York City, for plaintiff. BENEDICT, J. This cause, having come on for trial, was submitted on an agreed statement of facts. The action was brought by the vendee in a contract for the purchase and sale of a parcel of real property, with a building containing three apartments erected thereon, to recover from the vendor the amount of the deposit made under the contract, amounting to $1,200 and $150, the expenses incurred for the examination of title; it being claimed by the plaintiff that the title tendered was unmarketable. The contract was dated January 24, 1920, and title was to close on April 2, 1920. It was provided that the sale should be subject, among other things, to two leases on two flats, expiring about November, 1920. At the time of the contract there was a third tenant, not mentioned in the contract, in occupation of the other apartment, whose lease was to expire on April 1, 1920, the day preceding the date fixed for the closing of title. Pending the contract, and on April 1, 1920, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes" (195 N.Y.S.) chapter 137 of the Laws of 1920 was passed and went into effect, whereby a court or judge sitting in a summary proceeding to dispossess a tenant holding over after the expiration of his term was authorized in his discretion and upon certain conditions to stay the execution of a warrant upon a final order in favor of the landlord for any period not to exceed one year. The tenant in question did not remove on April 1, 1920, and closing of title was adjourned eventually until April 13, 1920. In the meantime the defendant instituted summary proceedings against such tenant, and a final order was made awarding possession of the apartment occupied by him to the landlord, but the execution of the warrant was stayed until May 1, 1920. Such being the situation on April 13th, the parties met, and defendant duly tendered a deed, which plaintiff refused to accept on account of the alleged incumbrance resulting from the occupancy of the said former tenant under the protection of such stay, and thereafter plaintiff commenced this action. The question which I am required to determine is, therefore, whether under these circumstances there was an incumbrance on the premises not specified in the contract, which relieved the plaintiff of his obligation to perform the same. I think that there was no such incumbrance. The former tenant, although obliged to pay for the use and occupation of a part of the premises during the continuance of the stay, was not a tenant, properly speaking, because the relation between him and the owner was one created by law and not by contract. The statute did not create an incumbrance on the property; it merely modified in certain respects the existing statutory remedy of summary proceeding. This remedy could have been taken away altogether without impairing the marketability of plaintiff's title. People ex rel. Durham Realty Corporation v. La Fetra, 230 N. Y. 429, 440, 441, 130 N. E. 601, 16 A. L. R. 152; Froehlich v. K. W. W. Holding Co., Inc., 116 Misc. Rep. 275, 279, 190 N. Y. Supp. 324, affirmed on opinion below App. Div. App. Div., 192 N. Y. Supp. 925. The act affected equally all property in the city of New York and adjoining counties devoted to similar uses, and it was passed by the Legislature in the exercise of the police power, to meet a special and peculiar emergency. The so-called zoning ordinance, which imposes restrictions on the use of real property, has been held not to constitute an incumbrance. Lincoln Trust Co. v. William Bldg. Corporation, 229 N. Y. 313, 128 N. E. 209. It may be urged that the present case is distinguishable from the case last above cited, and falls within the doctrine of the case of Anderson v. Steinway & Sons, 178 App. Div. 507, 165 N. Y. Supp. 608, affirmed 221 N. Y. 639, 117 N. E. 575, because in the former case the contract of purchase and sale was made after the enactment of the zoning ordinance, while here the statute in question was passed subsequent to the making of the contract. In the Anderson Case considerable weight was given in the Appellate Division to the fact that the zoning ordinance was enacted between the date of the contract and the date set for the closing of title, but the Court of Appeals rested its affirmance upon the ground that such ordinance prevented the vendee from using the premises for a special purpose for which, to the knowledge of the vendor, the vendee was buying such premises and other contiguous premises. In the present case it does not appear that the vendee was buying the premises either for his own occupancy or for any other special purpose, and hence I think the Anderson Case is inapplicable. The case of Froehlich v. K. W. W. Holding Co., supra, involves the question of the effect of the emergency housing legislation of 1920 on the right of a vendee to enforce specific performance of a contract for the sale of real property, and it was held, under the circumstances there disclosed, that such right was not affected. Although the case differs somewhat from the present case, it tends to support the proposition that such legislation did not burden the premises to which it applied with incumbrances. I shall therefore give judgment for the defendant, dismissing the complaint on the merits, but without costs. Settle decision and judgment on notice. Since my memorandum herein directing judgment in favor of the defendant was filed on May 31st last, I have read the opinion of the Appellate Division, First Department, in Urbis Realty Co. v. Globe Realty Co., App. Div. -, 194 N. Y. Supp. 535, handed down June 3d last (not yet [officially] reported), which, it is claimed by the defendant herein, is directly contrary to my decision. The instant case is, however, clearly distinguishable from the case in the First Department, because prior to the date to which closing of title was adjourned a final order in a summary proceeding had been granted against the former tenant whose occupancy was claimed to constitute an incumbrance. He was not, therefore, a tenant at the time of plaintiff's refusal to take title, and his occupancy under the stay of the warrant was not a tenancy. No such situation was presented in the first department case. I have also noted on my former memorandum that the case of Froehlich v. K. W. W. Holding Co., therein cited, was affirmed by the Appellate Division, Second Department, on the opinion below. Decision and judgment in favor of defendant signed, and plaintiff's requests to find passed upon. Judgment accordingly. (118 Misc. Rep. 806) STRETZ v. ZOLKOSKI et al. (Supreme Court, Kings County. June, 1922.) 1. Husband and wife 14 (2)-Where land owned by entirety is sold under mortgage foreclosure, the surplus is constructively real property. Where land owned by a husband and wife as tenants by entirety is sold under mortgage foreclosure, the surplus over the mortgage debt is constructively real property, still held in entirety by both. 2. Husband and wife 14(2)-A wife, purchasing on foreclosure property owned by entirety, held entitled to offset price as against equity of redemption. Where, at the time the decree of foreclosure and sale of land held by entirety was granted, the husband had abandoned his family, was under For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) indictment therefor, and was a fugitive from justice, and the wife acknowledged that she bid in the property and will still hold it by entirety, her motion for leave to offset as against the purchase price the equity of redemption in the property will be granted, in the absence of objection by her creditors. 3 Husband and wife 14 (2)-Where wife purchases property held by entirety on mortgage foreclosure while husband is fugitive, on his claiming as survivor, her estate will have claim against him for support. Where husband and wife held property as tenants by entirety, and the same was sold under a mortgage foreclosure, the husband then being a fugitive from justice, and the property was purchased by the wife, the husband still has his interest contingent on survivorship, and if, after the wife's death, he reappears to assert his claim as survivor, her estate will have a claim against him, to be satisfied out of the property, for what she has expended for support. Action by Max Stretz against Joseph Zolkoski and others. On motion by purchaser on foreclosure for a set-off. Motion granted. Samuel Levy, of Brooklyn, for plaintiff. Halbert & Quist, of Brooklyn (Louis J. Halbert, of Brooklyn, of counsel), for defendant Mary Zolkoski. FAWCETT, J. This is a motion to allow the defendant Mary Zolkoski, purchaser at the foreclosure sale in the above-entitled action, to set off as against the purchase price the equity in the said property, the title to which was held by her and her husband as tenants by the entirety. It is in effect an application for instructions to the referee after the sale. The facts substantially are as follows: The defendants Joseph Zolkoski and Mary Zolkoski, his wife, held title as tenants by the entirety, and were the owners of the equity of redemption of the property in question at the time of the decree of forclosure and sale. The husband had abandoned his family, was under indictment therefor, and was a fugitive from justice. The wife purchased the property at the foreclosure sale for the sum of $4,350 above a first mortgage of $3,000 and $90 accrued interest. She demanded an offset over and above the plaintiff's claim of $1,200 and interest, costs, and taxes, to the extent of her bid, at the time of the signing of the terms of sale. [1] The moving party contends she is entitled to this offset perforce of the character of her estate. The question raised by petitioner is whether under the circumstances she, the tenant by the entirety, can claim the offset of the equity of redemption, or must she pay the full value of the equity of redemption; the balance, after payment of the judgment herein, to be deposited with the city chamberlain in trust to await the contingency of her husband surviving her, or she surviving him. Where land owned by the husband and wife, as tenants by the entirety, is sold under mortgage foreclosure, the surplus over the mortgage debt is constructively real property, still held in entirety by both. Germania Savings Bank v. Jung (Sup.) 18 N. Y. Supp. 709. The wife is not the owner of the entire surplus. [2, 3] The tenancies by entireties question can only arise by virtue of the original limitation. Matter of Baum, 121 App. Div. 496, 106 N. Y. Supp. 113. It does not impinge the property when sold under For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes foreclosure, even though the wife is the one who buys it in. Thenceforth her title is as purchaser, and not under the original limitation. The husband still has his interest, contingent on his survivorship, in the surplus on the foreclosure (Germania Savings Bank v. Jung [Sup.] 18 N. Y. Supp. 709), and, unless some method of substituting the equity of redemption in the purchased property in place of the surplus can be devised, the surplus must be paid over to the referee. The husband absconding and putting the burden of supporting his family entirely upon his wife, she would have a claim against him for repayment. Heidelberger v. Heidelberger, 196 App. Div. 626, 187 N. Y. Supp. 864. If, therefore, she acknowledges now that she has bought this property, and will still hold it, as in entirety, and so obviate the necessity of putting up the surplus, she would be safe, and no one hurt. If the husband survives her, then reappears, and asserts his claim as survivor, her estate will have the claim against him to be satisfied out of the property for what she has expended for support. If he dies before her, then she will have it all under the survivorship. The only one who might object to her now declaring the tenancy by entirety would be. some creditor of hers, if she has any. A creditor of the husband could not interpose objections, for any such would have no claim against the surplus until time would have determined that he was the survivor. The application on behalf of the wife for leave to offset the surplus as against the price she bid at the sale is granted upon the aforementioned conditions, and the referee is instructed accordingly. Settle order on two days' notice. Ordered accordingly. (118 Misc. Rep. 706) ASYLUM OF ST. VINCENT DE PAUL v. McGUIRE et al. (Supreme Court, New York County. May, 1922.) 1. Bankruptcy 140 (3)-Corporation, whose treasurer had without authority delivered corporation's securities to bankrupt firm, of which he was a member, not entitled to priority over owners of other securities converted by firm. Where corporation's treasurer, without authority from corporation, delivered certain securities belonging to the corporation to a stock brokerage firm of which he was a member, and the firm without the corporation's consent transferred them to a bank as collateral security for bank's loan to the firm, and the bank sold the securities on the firm's default in payment of its note, the corporation, on bankruptcy of the firm, was not entitled to priority over owners of other securities which the firm had converted by depositing stock with such bank as collateral security for the note. 2. Sales234(6)-Stolen security cannot be held against true owner, even by bona fide purchaser. Generally a stolen security cannot be held against the true owner by any one, not even a purchaser in good faith for value. 3 Brokers 100-Owner who leaves securities with broker takes chance of losing them, if latter hypothecates them with pledgee, who takes them in good faith. Independently of every other security owner, one who leaves his securities in a negotiable form with his broker takes the chance of losing: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |