
    COWDREY v. TURNER.
    . (Supreme Court, General Term, Second Department.
    March 5, 1895.)
    1. Summary Proceedings—Pleading—Title under Mortgage Foreclosure. In summary proceedings the petition is insufficient where it merely alleges that plaintiff purchased the premises under foreclosure of a mort-
    
      gage by proceedings taken as prescribed in title 9, c. 17, Code Civ. Proc., without stating that the mortgage contained a power of sale, and was recorded in the county where the property is situated, as it is only in such case that a mortgage can be foreclosed under the statute.
    2. Mortgages—Foreclosure—Affidavit of Sale.
    Under Code Civ. Proc. § 2400, providing that a purchaser at a foreclosure sale obtains title on payment of the purchase money and compliance with the other terms of sale, without filing and recording the affidavits “as prescribed in the last section but one, unless he is the person authorized to execute the power of sale,” such affidavits of sale must be filed where the person exercising the power of sale becomes the purchaser.
    Appeal from Kings county court.
    Summary proceedings by Harry Cowdrey against Lawrence A. Turner. There was a judgment in favor of plaintiff, and defendant appeals. Reversed.
    Argued before BROWN, P. J,, and DYKMAN and CULLEN, JJ.
    Hathaway & Montgomery, for appellant.
    S. F., F. H. & H. Cowdrey, for respondent.
   CULLEN, J.

This is an appeal from a judgment of the county court of Kings county affirming a final order of a justice of the peace in summary proceedings to recover the possession of land. The respondent is the agent of one Sarah Chauncey Savage. She was the mortgagee of the premises the subject of these proceedings. That mortgage was foreclosed by advertisement under the statute. Thereupon, under subdivision 2, § 2232, Code Civ. Proc., her agent instituted these proceedings to recover possession of the mortgaged premises from the appellant, who is in possession under the mortgagor. We think that there are two fatal defects in these proceedings. The petition presented to the justice of the peace was insufficient. It simply stated that Sarah Savage purchased the premises upon a foreclosure of the mortgage by proceedings taken as prescribed in title 9, c. 17, of the Code of Civil Procedure. Mortgages can be foreclosed under the statute only where they contain a power of sale, and when they have been recorded in the county where the property is situated. These requirements were jurisdictional, and should have been averred in the petition. State v. Burdick (Sup.) 5 N. Y. Supp. 363. The second objection to the plaintiff’s recovery is that it appeared on the hearing that she had not filed and recorded the affidavits of sale, of publishing, and service of notice, as prescribed by sections 2396-2398. Under the Revised Statutes, and before the Code, it was held that, where the mortgagee or his assignee purchased, it was necessary that the affidavits of sale and publication should be recorded before the title to the purchaser became complete, such affidavits acting as a substitute for the deed, which it was impossible for the mortgagee to execute to himself. Arnot v. McClure, 4 Denio, 41; Bryan v. Butts, 27 Barb. 503. We do not understand the authority of Arnot v. McClure in this respect to have been overruled by subsequent decisions. In Tuthill v. Tracy, 31 N. Y. 157, it was held that a sale pursuant to the statute bars the equity of redemption without affidavits being made; but it was also held that, until the affidavits are made and filed, the title of the purchaser was merely equitable. In Mowry v. Sanborn, 68 N. Y. 153, the case of Arnot v. McClure is reviewed. It was there held that common-law proof of the service of the notice of sale could be admitted to supply a defect in an affidavit of service on file. But that decision proceeded on the ground that affidavits of service of notice of sale were not required, by the statute as it then stood, to be filed or recorded. The question would now seem put at rest by the provisions of the Code. Section 2400 provides:

“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 purchase money, 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.”

This enactment that a purchaser other than the donee of the power acquires title without the filing and recording of the affidavits, is equivalent to a declaration that the donee of the power, when the purchaser, must file and record the affidavits to complete his title. That this was the intention of the codifier is plain from the notes of Mr. Throop to this section and section 2396.

The judgment of the county court and of the justice of the peace should be reversed, with costs and disbursements. All concur.  