167 Greenwich Realty Co. v. Kehoe

Appellate Division of the Supreme Court of New York

167 Greenwich Realty Co. v. Kehoe

3 A.D.2d 659, 158 N.Y.S.2d 1005, 1957 N.Y. App. Div. LEXIS 6574

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 29, 1957

StatusPublished

Cited by3 cases

This text of 3 A.D.2d 659 (167 Greenwich Realty Co. v. Kehoe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

167 Greenwich Realty Co. v. Kehoe, 3 A.D.2d 659, 158 N.Y.S.2d 1005, 1957 N.Y. App. Div. LEXIS 6574 (N.Y. Ct. App. 1957).

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Opinion

The parties to this submission, under sections 546-548 of the Civil Practice Act, seek a determination as to the right of one of the defendants, as administratrix, to sell certain real property to the plaintiff without first obtaining the approval of the Surrogate. The answer to the question necessitates an interpretation of section 13 of the Decedent Estate Law. Subdivision 1 of that section permits such sale in certain circumstances, subject however to the limitations stated in subdivision 2 thereof. There is nothing in the statement of facts to indicate whether or not the property comes within the limitations of subdivision 2. We may not go outside the stipulation of facts to decide the issue raised and, inasmuch as the facts stipulated are insufficient for a determination of such issue, there must be a dismissal (Manhattan Storage & Warehouse Go. v. Movers & Warehousemen’s Assn., 289 N. Y. 82). Moreover section 546 of the Civil Practice Act provides that “ The case must be accompanied with the affidavit of one of the parties to the effect that the controversy is real”. Implicit in such requirement is a condition precedent to the determination by this court of a matter submitted under the section that the controversy in fact be a real one. While the affidavit required by the section has been submitted, the papers raise a question as to whether in fact this is a real controversy. We do not know and it cannot be determined whether the controversy is between the plaintiff and the defendant, whether the title company referred to in this stipulation is the real party in interest, or whether there [660]*660is any real controversy at all. There was but one brief submitted and that was the brief of the plaintiff. That fact is certainly no aid in determining whether there is a real controversy involved. The submission is dismissed, without costs, and without prejudice. Settle order on notice. Concur —Peek, P. J., Botein, Rabin and Frank, JJ. [See post, p. 709.]

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The parties to this submission, under sections 546-548 of the Civil Practice Act, seek a determination as to the right of one of the defendants, as administratrix, to sell certain real property to the plaintiff without first obtaining the approval of the Surrogate. The answer to the question necessitates an interpretation of section 13 of the Decedent Estate Law. Subdivision 1 of that section permits such sale in certain circumstances, subject however to the limitations stated in subdivision 2 thereof. There is nothing in the statement of facts to indicate whether or not the property comes within the limitations of subdivision 2. We may not go outside the stipulation of facts to decide the issue raised and, inasmuch as the facts stipulated are insufficient for a determination of such issue, there must be a dismissal (Manhattan Storage & Warehouse Go. v. Movers & Warehousemen’s Assn., 289 N. Y. 82). Moreover section 546 of the Civil Practice Act provides that “ The case must be accompanied with the affidavit of one of the parties to the effect that the controversy is real”. Implicit in such requirement is a condition precedent to the determination by this court of a matter submitted under the section that the controversy in fact be a real one. While the affidavit required by the section has been submitted, the papers raise a question as to whether in fact this is a real controversy. We do not know and it cannot be determined whether the controversy is between the plaintiff and the defendant, whether the title company referred to in this stipulation is the real party in interest, or whether there [660]*660is any real controversy at all. There was but one brief submitted and that was the brief of the plaintiff. That fact is certainly no aid in determining whether there is a real controversy involved. The submission is dismissed, without costs, and without prejudice. Settle order on notice. Concur —Peek, P. J., Botein, Rabin and Frank, JJ. [See post, p. 709.]

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Bluebook (online)

3 A.D.2d 659, 158 N.Y.S.2d 1005, 1957 N.Y. App. Div. LEXIS 6574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/167-greenwich-realty-co-v-kehoe-nyappdiv-1957.

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