Zouppas v. Yannikidou

• Decision Date: 06 March 1962
• Citation: 16 A.D.2d 52,225 N.Y.S.2d 557
• Parties: Harry A. ZOUPPAS, also known as Eleutherios Athan Zouppas, Plaintiff-Respondent, v. Anna YANNIKIDOU, if living, the individual intended being the daughter of Maria Yannikidou, deceased, etc., et al., Defendant-Appellant, Charles Denby, Andrew Pappas and The People of the State of New York, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 557

225 N.Y.S.2d 557

16 A.D.2d 52

Harry A. ZOUPPAS, also known as Eleutherios Athan Zouppas Plaintiff-Respondent, v. Anna YANNIKIDOU, if living, the individual intended being the daughter of Maria Yannikidou, deceased, etc., et al Defendant-Appellant, Charles Denby, Andrew Pappas and The People of the State of New York, Defendants.

Supreme Court, Appellate Division, First Department.

March 6, 1962.

Martin L. Fried, New York City, of counsel (Bernard Goldstein, New York City, and Seymour Klagsbrun, New York City, on the brief; Tenzer, Greenblatt, Fallon & Kaplan, New York City, attorneys) for defendant-appellant.

Martin A. Fromer, New York City (Stanford G. Lotwin, New York City, on the brief), attorney for plaintiff-respondent.

Before BOTEIN, P. J., and RABIN, McNALLY, STEVENS, and BERGAN, JJ.

McNALLY, Justice.

In this partition action the question presented is whether the final order and judgment confirming the sale and granting judgment accordingly was properly made.

Involved is a parcel of land 25 feet in width, front and rear, and 100 feet in depth, situate on the easterly side of First Avenue, 77 feet 2 inches south of 73rd Street, in the Borough of Manhattan, improved with an old four-story tenement. The principal value is in the land. The premises were sold at public auction to plaintiff, the sole bidder, for $5,000, subject to a first mortgage of $13,000, a lien of $2,196.48 and alleged New York and Federal liens for unpaid estate taxes. The property is assessed at $36,000.

Appellant, a resident of Greece, contends the sale price is inadequate; that bidding at the sale was inhibited by the manner in which it was conducted. Appellant adverts to a prior offer of $50,000 for the property, and to recent sales of comparable parcels for $70,000 and $120,000, and the affidavit of her real estate expert states that value of the property to be $65,000.

It would appear that the price obtained was grossly inadequate, although we do not find it necessary to so find in order to reach our decision.

We take judicial notice of the interlocutory judgment herein entered August 7, 1961, the terms of sale, and the report of sale confirmed by the order and judgment reviewed on this appeal, not part of the record on this appeal. (Hunter v. N. Y., O. & W. R. R. Co., 116 N.Y. 615, 621-622, 23 N.E. 9, 10, 11, 6 L.R.A. 246; People v. Dritz, 259 App.Div. 210, 18 N.Y.S.2d 455; People ex rel. Platt v. Rice, 80 Hun. 437, 442, 30 N.Y.S. 457, 460, affd. 144 N.Y. 249, 39 N.E. 88.) It has been held that matters judicially noticed by an appellate court should be limited to matters sustaining the judgment below (Day v. Town of New Lots, 107 N.Y.S. 148, 157, 13 N.E. 915, 919), but more recently that they may support a reversal (Hunter v. N.Y., O. & W. R. R. Co., supra). Moreover, to the extent this appeal is from the order confirming the referee's report of sale, this court exercises original jurisdiction of the underlying motion (De Rosa v. Slattery Contracting Co., 14 A.D.2d 278, 281, 220 N.Y.S.2d 871, 874) and may take judicial notice of the filed papers upon which the order was made. (See, also, Matter of Marshall, 15 A.D.2d 310, 223 N.Y.S.2d 207 [1st Dept.], decided January 16, 1962.)

The interlocutory judgment entered August 7, 1961 recites the liens of the mortgage for $13,000 and the additional lien for $2,196.48, and directs the sale of the premises at public auction; no provision is made therein for a sale subject to tax liens. The notice of sale offered the property subject to said liens and 'subject to lien for unpaid New York Estate Tax and Federal Estate Tax'. The amount of the estate tax liens was not stated and does not appear.

The Supreme Court has power to set aside a judicial sale of real property although it is regular, even in the absence of fraud. (Hale v. Clauson, 60 N.Y. 339.) A sale may be set aside for irregularities. (May v. May, 11 Paige 201.) An application for relief against a judicial sale is addressed to the discretion of the Supreme Court. The Court of Appeals has held that orders vacating sales for irregularities are not reviewable there. (Hale v....