Coon v. McClendon

285 A.D. 1213, 140 N.Y.S.2d 468, 1955 N.Y. App. Div. LEXIS 7180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1955
• Status: Published

Opinion

Order reversed, on the law, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: This action has been brought under the provisions of article 15 of the Real Property Law. It seeks to determine title to a farm of twenty-eight acres located partly in Ontario County and partly in Livingston County. All parties to the action base their claim to title on the provisions of the will of Alonzo Townsend, deceased, which will was written in 1914, probated in Livingston County Surrogate’s Court in 1916, the testator having died February 23, 1916. The defendant relies, in asserting her claim, on an adoptive order of the Ontario County Court made and entered June 27, 1917, by virtue of which she claims she qualifies as a descendant under the will mentioned. There is no evidence that any proceeding is now pending in Surrogate’s Court of Livingston County. The instant action is in the nature of an ejectment. There appears to be no ambiguity in the paragraph of the will under which the respective parties make claim; no judicial construction of the particular provision of the will is sought, nor, in fact, is needed. What is actually involved is the legal effect of the adoptive order made and entered, as stated, by Ontario County Court in 1917, three years after the will was made, a year after the will was admitted to probate, and over a year after the owner, under whose will both parties claim, had died. In our judgment, Supreme Court had jurisdiction of the action, and was a proper forum in which to determine the issues raised. The motion dismissing the complaint made on the ground that Supreme Court had no jurisdiction of the subject matter of the action, and that the complaint does not state facts sufficient to warrant Supreme Court in assuming jurisdiction of the action or of the subject matter thereof should, therefore, have been denied. All concur. (Appeal from an order of Ontario Special Term, granting defendant’s motion for a dismissal of plaintiffs’ complaint in an action under article 15 of the Real Property Law for a judgment barring defendant from any claim of an interest in a certain farm.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Van Duser, JJ.