
    Ida M. Murphy, Respondent, v. Burton H. Smith and Others, Defendants. Anthony McOwen, Purchaser, Appellant.
    
      Mortgage foreclosure sale — an affidavit that a claim, was made to boilers, etc., in a house sold under mortgage foreclosure, by the vendors of such articles is insufficient as an objection to the title.
    
    A person who purchased at a foreclosure sale unfinished houses, in which were boilers, heaters, radiators, ranges, dumb waiters and tubs, is not entitled to relief from his purchase,, upon showing that he believed that .those articles • would pass with the title, and were to be permanently attached to the land, but that the vendors thereof had notified him that they had delivered the chattels to the owner.of the equity of redemption under contracts of conditional sale, and that the title thereto had never passed out of them there being no evidence that the claims of the vendors were made in good faith and rested on a basis of right.
    . Appeal by Anthony McOweh, the purchaser at the foreclosure sale in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in Che office of the clerk of the county of New York on the 19th day of April, 1901, denying a motion to be relieved' from his purchase.
    
      T. Chcmnon Press, for the appellant.
    
      A. B. Carrington, for the respondent.
   Per Curiam :

A purchaser at a judicial sale moved the court below to be.relieved from his purchase. He bid the property in at a sale under a foreclosure decree. The houses upon the land sold were unfinished. Upon the premises were certain boilers, heaters, radiators, ranges,. dumb waiters and tubs, all of which, he asserts, were intended for the houses, and were to be permanently connected with the same. He claims that he believed these articles were attached to the. freehold and would pass with the title thereto, but that they retain their character as chattels because they were delivered to the owner of the equity of redemption upon conditional sales, and that the title thereto has never passed out of the sellers of such chattels. The court below denied the motion of the purchaser to be relieved, and properly so.

There was no proof made of anything more than that the plaintiff received notice of a claim of the sellers of the chattels that they had parted with them upon a conditional sale. The mere assertion of a claim is not sufficient in a case of this character. Ho proof was presented coming from either of the persons by whom it is alleged such claims were preferred. The articles would ordinarily pass with the freehold. It should be shown that the sellers were entitled to sever and take them away. A judicial sale is not to be set aside simply because of the assertion ■ of a claim, without one word of proof to support it. Some evidence was required that the claims had a foundation in something else than mere assertion. There is nothing to show why affidavits of the respective alleged claimants were not procured, so that the court could see that the claims were made in good faith and rested on a basis of right.

The order appealed from should -be affirmed^ with ten dollars costs and disbursements.

Present — Patterson, O’Brien, McLaughlin, Hatch and Lahghlin, JJ.

Order affirmed, with ten dollars costs and disbursements.  