Opinion
January 22, 1968
East Brooklyn Savings and Loan Association appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated June 20, 1967, as directs that it be removed from the premises in question. Order reversed insofar as appealed from, on the law and the facts, without costs, and plaintiff's motion denied in all respects. In this declaratory judgment action plaintiff was awarded possession, under the terms of a lease, of the real property here in dispute. The judgment was affirmed on appeal ( County Fed. Sav. Loan Assn. v. First Pennsylvania Realty Corp., 26 A.D.2d 990). In the supplementary proceedings now under review plaintiff moved, inter alia, for an order in the nature of a writ of assistance to enforce the judgment and to provide that the Sheriff remove the present occupant, appellant, from the premises and deliver possession of the premises to plaintiff. The order appealed from granted the motion. Appellant was not a party to this declaratory judgment action and, accordingly, is not bound by the judgment. Hence, it was error for the court to direct the Sheriff to put plaintiff into possession under section 221 Real Prop. Acts. of the Real Property Actions and Proceedings Law (cf. Benn Riegel Contr. Supply Co. v. Seigel, 110 Misc. 710; Davidson v. Weed, 21 App. Div. 579). Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.