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Gilbert, J.: The 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.
Judgment accordingly, with costs to the plaintiff.
Presents-Barnard, P. J., Gilbert and Dykman, JJ. Judgment for plaintiff upon submitted case.
Document Info
Citation Numbers: 21 N.Y. Sup. Ct. 617
Judges: Barnard, Dykman, Gilbert, Presents
Filed Date: 9/15/1878
Precedential Status: Precedential
Modified Date: 2/4/2022