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chapter four hundred and nine of the laws of eighteen hundred and eighty-six and the acts amendatory thereof. The factory inspector, or a deputy factory inspector authorized by him shall issue a certificate to a person conducting a bakery where such bakery is conducted in compliance with all the provisions of this act. Id., $ 8, as am'd L. 1896, c. 672. 59 Notice to owner, etc., of building. The owner, agent or lessee of any property affected by the provisions of sections two, three or five of this act shall, within sixty days after the service of a notice requiring any alterations to be made in or upon such premises, comply therewith, and such notice shall be in writing and may be served upon such owner, agent or lessee, either personally or by mail, and a notice mailed to the last-known address of such owner, agent or lessee shall be deemed sufficient for the purposes of this act. Id., § 9, as am'd L. 1896, c. 672. ADULTERATION OF; see Adulteration. FURNISHED TO ANIMALS; see Animals, SS 34, 35, 37, 43, 44, FURNISHED TO MINORS; see Children, 8 61. GIFT SALES OF; see Lotteries, & 23. OBTAINING FRAUDULENTLY, ETC., OF INN, ETC.; see Inns, etc., § 17. WITH LIQUOR; see Liquor Tax Law, S 31. POISONING; see Poisons.
FOOT. See Domestic Commerce Law, $ 3.
FORCE. See Assault; Coorcion ; Duress ; Fisheries, etc., Law, § 320; Rape; Robbery; Search Warrant.
FORCIBLE ENTRY AND DETAINER. 1 A misdemeanor. A person, guilty of using, or of procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor. Pen. Code, § 465. 8 N. Y. Supp. 231; 28 N. Y. St. R. 44; 38 id. 197.
2 Taking possession of lands after being legally removed. A person, who has been removed from any lands by process of law, or who has removed from any lands pursuant to the lawful adjudication or direction of any court, tribunal or officer, and who afterwards, without authority of law, returns to settle or reside upon or take possession of such lands, is guilty of a misdemeanor. Pen. Code, $ 466.
3 Unlawful intrusion or building on lands. A person, who intrudes upon any lot or piece of land within the bounds of a city or village, without authority from the owner thereof, or who erects or occupies thereon any hut, or other structure whatever without such authority; and a person who places, erects, or occupies within the bounds of any street or avenue of a city or village, any hut, or other structure, without lawful authority, is guilty of a misdemeanor. Pen. Code, § 467. 16 Abb. N. C. 84, n., 87; 109 N. Y. 161; 141 id. 538; 57 N. Y. St. R. 823; 61 id. 584; 14 id. 808;
79 Hun, 587. See also Real Property Law, $ 357; Summary Proceedings, SS 4–6, 16, 21.
FORECLOSURE OF MORTGAGE BY ADVERTISEMENT. 1 When mortgage may be foreclosed. A mortgage upon real property, situ- . ated within the state, containing therein a power to the mortgagee, or any other person, to sell the mortgaged property, upon default being made in a condition of the mortgage, may be foreclosed, in the manner prescribed in this title,* where the following requisites concur:
1. Default has been made in a condition of the mortgage, whereby the power to sell has become operative.
2. An action has not been brought to recover the debt secured by the mortgage, or any part thereof; or, if such an action has been brought, it has been discon
* This subject.
tinued, or final judgment has been rendered therein against the plaintiff, or an execution, issued upon a judgment rendered therein in favor of the plaintiff, has been returned wholly or partly unsatisfied.
3. The mortgage has been recorded in the proper book for recording mortgages, in the county wherein the property is situated. Code Civ. Pro., § 2387. 5 N. Y. 71; 65 id. 43; 68 id. 153, 156; 141 id, 302; 3 Daly, 263; 3 Barb. Ch. 616; 4 Keyes,
487, aff'g 36 Barb. 501; 13 Barb. 137; 47 id. 416; 62 id. 223; 53 id. 285; 7 Wend. 458; Í Paige, 250; 1 id. 48; 5 Hill, 272; 2 Cow. 195; 5 How. Pr. 476; Clarke, 109; 3 Johns. Ch. 129; 5 id. 35; 7 id. 25; 52 Hún, 351; 11 id, 545; 69 id. 28; 20 Civ. Pro. 113; 35 N. Y. St.
R. 901; 57 id. 410; 52 id. 818; 13 N. Y. Supp. 209; 23 id. 433. 2 Notice of sale. The person entitled to execute the power of sale, must give notice, in the following manner, that the mortgage will be foreclosed, by a sale of the mortgaged property, or a part thereof, at a time and place specified in the notice:
1. A copy of the notice must be published at least once in each of the twelve weeks immediately preceding the day of sale in a newspaper published in the county, or in a municipal corporation, a part of which is within the county, in which the property to be sold or a part thereof is situated.
2. A copy of the notice must be fastened up, at least eighty-four days before the day of sale, in a conspicuous place, at or near the entrance of the building, where the county court of each county, wherein the property to be sold is situated, is directed to be held; or, if there are two or more such buildings in the same county, then in a like place, at or near the entrance of the building nearest to the property; or, in the city and county of New York, in a like place, at or near the entrance of the building, where the court of common pleas for that city and county is directed by law to be held.
3. A copy of the notice must be delivered, at least eighty-four days before the day of sale, to the clerk of each county, wherein the mortgaged property, or any part thereof, is situated.
4. A copy of the notice must be served, as prescribed in the next section, upon the mortgagor, or, if he is dead, upon his executor or administrator. A copy of the notice may also be served, in like manner, upon a subsequent grantee or mortgagee of the property, whose conveyance was recorded, in the proper office for recording it in the county, at the time of the first publication of the notice of sale; upon the wife or widow of the mortgagor, and'the wife or widow of each subsequent grantee, whose conveyance was so recorded, then having an inchoate or vested right of dower, or an estate in dower, subordinate to the lien of the mortgage; or upon any person, then having a lien upon the property, subsequent to the mortgage, by virtue of a judgment or decree, duly docketed in the county clerk's office and constituting a specific or general lien upon the property. 12 Abb. N. C. 110.
The notice, specified in this section, must be subscribed by the person entitled to execute the power of sale, unless his name distinctly appears in the body of the notice, in which case, it may be subscribed by his attorney or agent. Code Civ. Pro., § 2388, subd. 1, as am'd L. 1894, c. 730. 13 Barb. 137; 32 id. 241; 47 id. 416; 9 id. 278; 11 id. 191; 20 id. 18; 34 id. 319; 51 id. 237; 29
id. 297; 16 id. 347; 62 id. 223; 17 id. 100; 12 Abb. N. C. 110; 20 N. Y. 412; 50 id. 8. 12. 667; 141 id. 302; 83 id. 215; 55 id. 7; 65 id. 581; s. c. 68 id. 153; 21 id. 186; 51 id. 503, n.; 4 Hun, 419; 1 id. 546; 15 id. 296; 2 id. 406; 19 id. 152; 3 id. 419; 69 id. 28; 51 id. 507; 65 id. 138; 32 id. 515; 21 id. 36; 9 Abb. Pr. 66, n.; 12 id. 294; 5 Johns, Ch. 35; 3 Hun, 419; 5 Lans, 51; s. c. 50 N. Y. 468; 2 Lans. 422; 2 Cow. 195, 231; 7 How. Pr. 372; 12 id. 490; 10 id. 51; 64 id. 388; 43 id. 122; 10 W. D. 347; 43 N. Y. St. R. 910; 52 id. 818; 21 id. 682;
47 id. 383; 4 N. Y. Supp. 570; 23 id. 433; 19 id. 913. 3 Service of same. Service of notice of the sale, as prescribed in subdivision fourth of the last section, must be made as follows:
1. Upon the mortgagor, his wife, widow, executor or administrator, or a subsequent grantee of the property, whose conveyance is upon record, or his wife or widow, by delivering a copy of the notice as prescribed in article first* of title first of chapter fifth of this act, for delivery of a copy of the summons in order
* See Actions, SS 9–22.
to whollast sectiomust make
to make personal service thereof upon the person to be served, or by leaving such a copy, addressed to the person to be served, at his dwelling-house with a person of suitable age and discretion, at least fourteen days before the day of sale. If said mortgagor is a foreign corporation, or being a natural person, he, or his wife, widow, executor or administrator, or a subsequent grantee of the property whose conveyance is upon record, or his wife or widow, is not a resident of or within the state, then service thereof may be made upon them in like manner without the state at least twenty-eight days prior to the day of sale.
2. Upon any other person, either in the same method, or by depositing a copy of the notice in the post-office, properly enclosed in a postpaid wrapper, directed to the person to be served, at his place of residence, at least twenty-eight days before the day of sale. Code Civ. Pro., § 2389, as am'd L. 1887, c. 685. 12 How. Pr. 490; 16 Barb. 347; 48 id. 116; 9 Abb. Pr. 66; 2 Hun, 406; 11 N. Y. 196; 25 id.
320. 4 County clerk to record same. A county clerk, to whom a copy of a notice of sale is delivered, as prescribed in subdivision third of the last section but one, must forthwith affix it in a book, kept in his office for that purpose; must make and subscribe a minute, at the bottom of the copy, of the time when he received and affixed it; and must index the notice to the name of the mortgagor. Code Civ. Pro., 2390.
5 Contents of same. The notice of sale must specify:
1. The names of the mortgagor, of the mortgagee, and of each assignee of the mortgage.
2. The date of the mortgage, and the time when, and the place where, it is recorded.
3. The sum claimed to be due upon the inortgage, at the time of the first publication of the notice; and, if any sum secured by the mortgage is not then due, the amount to become due thereupon.
4. A description of the mortgaged property, conforming substantially to that contained in the mortgage. Code Civ. Pro., § 2391. 12 HƏw. Pr. 490; 21 N. Y. 186; 86 id. 428; 68 id. 153; 72 id, 534; 51 Barb. 243; 16 id. 347; 62
id. 223; 5 Johns. Ch. 35; 50 N. Y. 468, aff'g 5 Lans. 51; 9 Abb. Pr. 68; 3 Hun, 419; 1 id.
546; 20 id. 133; 11 Paige, 626; 1 Hill, 107; 1 Cai. Cas. 1. 6 Postponement of sale; notice. The sale may be postponed, from time to time. In that case, a notice of the postponement must be published, as soon as practicable thereafter, in the newspaper in which the original notice was published; and the publication of the original notice, and of each notice of postponement, must be continued, at least once in each week, until the time to which the sale is finally postponed. Code Civ. Pro., § 2392. 7 How. Pr. 372; 4 Den. 104; 7 Johns. 217; 7 Hun, 676; 10 W. D. 347.
7 Sale, how made. The sale must be at public auction, in the day-time, on a day other than Sunday or a public holiday, in the county in which the mortgaged property, or a part thereof, is situated; except that, where the mortgage is to the people of the state, the sale may be made at the capitol. If the property consists of two or more distinct farms, tracts, or lots, they must be sold separately; and as many only of the distinct farms, tracts, or lots, shall be sold, as it is necessary to sell, in order to satisfy the amount due at the time of the sale, and the costs and expenses allowed by law. But where two or more buildings are situated upon the same city lot, and access to one is obtained through the other, they must be sold together. Code Civ. Pro., § 2393. 7 How. Pr. 372; 47 Barb. 416; 8 id. 9; 42 N. Y. 89; 50 id. 468, aff'g 5 Lans. 51; 14 Civ. Pro.
760; 51 Hun, 457, 460; 19 id. 548; 22 Abb. N. C. 419, n.; 21 N. Y. St. R. 231; 3 N. Y.
Supp. 479, 851. 8 Mortgagee, etc., may purchase. The mortgagee, or his assignee, or the legal representative of either, may, fairly and in good faith, purchase the mortgaged property, or any part thereof, at the sale. Code Civ. Pro., § 2394. 68 N. Y. 160: 54 id. 636; 50 id. 468; 141 id. 202: 20 Hun, 537; 69 id. 28; 7 Paige, 248; 5 Lans. 9 What claims, etc., barred by sale. A sale, made and conducted as prescribed in this title*, to a purchaser in good faith, is equivalent to a sale, pursuant to judgment in an action to foreclose a mortgage, so far only as to be an entire bar of all claim or equity of redemption, upon or with respect to the property sold, of each of the following persons:
51; 23 N. Y. Supp. 433; 52 N. Y. St. R. 818; 57 id. 410.
1. The mortgagor, his heir, devisee, executor or administrator.
2. Each person, claiming under any of them, by virtue of a title, or of lien by judgment or decree, subsequent to the mortgage, upon whom the notice of sale was served, as prescribed in this title.*
3. Each person so claiming, whose assignment, mortgage, or other conveyance was not duly recorded in the proper book for recording the same in the county, or whose judgment or decree was not duly docketed in the county clerk's office, at the time of the delivery of a copy of the notice of said sale to the clerk of the county; and the executor, administrator or assignee of such a person. · 4. Every other person, claiming under a statutory lien or incumbrance, created subsequent to the mortgage, attaching to the title or interest of any person, designated in either of the foregoing subdivisions of this section.
5. The wife or widow of the mortgagor, or of a subsequent grantee, upon whom notice of the sale was served as prescribed in this title,* where the lien of the mortgage was superior to her contingent or vested right of dower, or her estate in dower. Code Civ. Pro., § 2395, as am'd L. 1889, c. 209. 50 N. Y. 8, 468; 9 id. 502; 86 id. 428; 65 id. 432; s. C. 11 Barb. 152; s. C. 9 N. Y. Leg. Obs.
292; 31 N. Y. 157; 13 Abb. Pr. 33; 12 id. 473; 33 N. Y. 658, aff'g 32 Barb. 347; 4 Paige, 526; 11 id. 619; 60 Barb. 617; 10 id. 558; 48 id. 116; 51 id. 236; 4 id. 109; 3 Hun, 503; 32 id. 521; 1 id. 546; 20 id. 133; 21 id. 36; 12 How. Pr. 490; 1 Hill, 107; 5 Johns. Ch. 35; 4
id. 37; 4 Paige, 58; 21 N. Y. St. R. 231; 2 Den. 344; 5 Lans. 51; 10 Johns. 185; 14 id. 435. 10 Affidavits of sale, and of publishing, posting, and serving notices. An affidavit of the sale, stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; and the name of the purchaser of each distinct parcel, may be made by the person, who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his foreman or principal clerk. An affidavit of the affixing of a copy of the notice, at or near the entrance of the proper court-house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, or upon any other person, upon whom the notice must or may be served, may be made by the person who made the service. Where two or more distinct parcels are sold to different purchasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels. Code Civ. Pro., 2396. 65 N. Y. 681: 31 id. 157: 50 id. 468: 85 id. 428: 72 id. 534: 12 How. Pr. 490: 48 Barb. 116: 85
Hun, 451; 20 id. 133; 5 Lans. 51; 20 N. Y. St. R. 581. 11 When one affidavit sufices; printed notices to be annexed. The matters required to be contained in any or all of the affidavits specified in the last section, may be contained in one affidavit where the same person deposes with respect to them. A printed copy of the notice of sale must be annexed to each affidavit; and a printed copy of each notice of postponement must be annexed to the affidavit of publication, and to the affidavit of sale. But one copy of the notice suffices for two or more affidavits, where they all refer to it, and are annexed to each other, and filed and recorded together. Code Civ. Pro., § 2397, as am'd L. 1882, c. 399. 72 N, Y. 534; 9 Civ. Pro. 240.
* This subject.
12 Filing and recording affidavits; copies as evidence. The affidavits, specified in the last two sections, may be filed in the office for recording deeds and mortgages, in the county where the sale took place. They must be recorded at length by the officer with whom they are filed, in the proper book for recording mortgages. The original affidavits, so filed, the record thereof, and a certified copy of the record, are presumptive evidence of the matters of fact therein stated, with respect to any property sold, which is situated in that county. Where the property sold is situated in two or more counties, a copy of the affidavits, certified by the officer with whom the originals are filed, may be filed and recorded in each other county, wherein any of the property is situated. Thereupon the copy and the record thereof have the like effect, with respect to the property in that county, as if the originals were duly filed and recorded therein. Code Civ. Pro., $ 2398. 72 N. Y. 534: 31 id. 157; 65 id. 581; 68 id. 153; 86 id. 428; 27 Barb. 503; s. c. 28 How. Pr.
582, n., aff'g 27 Barb. 503; 10 W. D. 13; 12 Hun, 332; 5 Rob. 719; 2 Cow. 195; 4 id. 266;
7 Johns. Ch. 25; 1 Cai. Cas. 1; 20 Hun, 545; 11 id. 545; 62 Barb. 223. 13 Note on margin of mortgage record. A clerk or a register, who records any affidavits, or a certified copy thereof, filed with him, must make a note, upon the margin of the record of the mortgage, in his office, referring to the book and page, or the copy thereof, where the affidavits are recorded. Code Civ. Pro., § 2399.
14 Taking title and paying purchase money. The purchaser of the mortgaged premises, upon a sale conducted as prescribed in this title,* obtains title thereto, against all persons bound by the sale, without the execution of a conveyance. Except where he is the person authorized to execute the power of sale, such a purchaser also obtains title, in like manner, upon payment of the purchasemoney, and compliance with the other terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section but one. But he is not bound to pay the purchase-money, until the affidavits, specified in that section, with respect to the property purchased by him, are filed, or delivered or tendered to him for filing. Code Civ. Pro., § 2400. 68 N. Y. 153, 164; 31 id. 157; 20 Barb. 559; 27 id. 503; 13 id. 137; 29 id. 297, 303; 4 Den. 41;
20 Hun, 135; 85 id. 451; 7 id. 380; 1 Paige, 48; 32 N. Y. Supp. 890. 15 Surplus money to be paid into supreme court. An attorney or other person who receives any money, arising upon a sale, made as prescribed in this title,* must, within ten days after he receives it, pay into the supreme court the surplus, exceeding the sum due and to become due upon the mortgage, and the costs and expenses of the foreclosure, in like manner and with like effect, as if the proceedings to foreclose the mortgage were taken in an action, brought in the supreme court, and triable in the county where the sale took place. Code Civ. Pro., 8 2404. 23 W. D. 428.
16 Petition by claimant of surplus. A person, who had, at the time of the sale, an interest in or lien upon the property sold, or a part thereof, may, at any time before an order is made, as prescribed in the next section but one, file in the office of the clerk of the county, where the sale took place, a petition, stating the nature and extent of his claim, and praying for an order, directing the payment to him of the surplus money, or a part thereof. Code Civ. Pro., § 2405. 10 How. Pr. 333: 13 id. 289: 17 Abb. Pr. 137; 12 id. 294: 47 Barb. 618; 6 id. 470: 32 id. 241:
45 id. 69; s. c. 17 Abb. Pr. 256; 19 N. Y. 440; 86 id. 428; 4 Lans. 399; 13 Wend. 488; 20
id. 555; 7 Paige, 167, 248; 10 W. D. 13; 20 Hun, 133; 1 id. 546; 2 Barb. Ch. 555. 17 Application for order, and notice. A person filing a petition, as prescribed in the last section, may, after the expiration of twenty days from the day of sale, apply to the supreme court, at a term held within the judicial district, embracing the county where his petition is filed, for an order, pursuant to the prayer of his petition. Notice of the application must be served, in the manner prescribed in this act for the service of a paper upon an attorney in an action, upon each person, who has filed a like petition, at least eight days before the application; and also upon each person, upon whom a notice of sale was served, as shown in
* This subject.