In re Braker

Appellate Division of the Supreme Court of New York

In re Braker

48 A.D. 443, 62 N.Y.S. 859

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

DecidedMarch 15, 1900

StatusPublished

This text of 48 A.D. 443 (In re Braker) 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

In re Braker, 48 A.D. 443, 62 N.Y.S. 859 (N.Y. Ct. App. 1900).

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Opinion

Goodrich, P. J.:

Thomas Flanagan died, intestate in April, 1887, leaving him surviving a widow and several infant children. There was some personal property, but it was inadequate to the payment of the intestate’s indebtedness, and in 1889 the members of the firm of H. J. Bralcer & Bro.,'including the appellant, obtained a judgment against the administratrix. In January, 1889, they presented to the surrogate of the county of Kings a petition for the sale of the real estate of the intestate. There is a conflict in the record as to what subsequent proceedings were had, but it is not disputed that nothing has ever been done since April, 1890, when, as the appellant claims, a decree of sale was made by the surrogate. The excuse presented for this delay is that it occurred at the request of the widow; but, as there were other parties interested, including some infants, we do not consider' the. excuse sufficient.

In 1899 an action, for- the partition of the real estate was commenced, in which an interlocutory judgment and decree of sale were made and the premises were sold in June, 1899, and apparently the purchaser refused to take title On account of the pendency of the proceedings for the sale in the Surrogate’s Court. Accordingly one of the heirs applied to the surrogate for an order dismissing the proceedings. This order the surrogate granted,, and from it the present appeal is taken.

Several objections are made by the respondent going to the validity of the original order for sale, but we do not deem it necessary to, consider them. We prefer to place our decision upon the ground that, although no opinion was written by the surrogate by which we can be informed of the specific reasons for his decision, he was justified in making his order by the fact that the creditors had been guilty of very great laches in allowing these proceedings to remain unmoved for a period of nearly ten years, long enough to justify the [445]*445belief that they had. been intentionally abandoned. Such discretion, :in our opinión, was wisely exercised by the learned surrogate, and .his order should be affirmed.

All concurred.

Order of the surrogate of Kings county affirmed, with costs.

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Goodrich, P. J.:

Thomas Flanagan died, intestate in April, 1887, leaving him surviving a widow and several infant children. There was some personal property, but it was inadequate to the payment of the intestate’s indebtedness, and in 1889 the members of the firm of H. J. Bralcer & Bro.,'including the appellant, obtained a judgment against the administratrix. In January, 1889, they presented to the surrogate of the county of Kings a petition for the sale of the real estate of the intestate. There is a conflict in the record as to what subsequent proceedings were had, but it is not disputed that nothing has ever been done since April, 1890, when, as the appellant claims, a decree of sale was made by the surrogate. The excuse presented for this delay is that it occurred at the request of the widow; but, as there were other parties interested, including some infants, we do not consider' the. excuse sufficient.

In 1899 an action, for- the partition of the real estate was commenced, in which an interlocutory judgment and decree of sale were made and the premises were sold in June, 1899, and apparently the purchaser refused to take title On account of the pendency of the proceedings for the sale in the Surrogate’s Court. Accordingly one of the heirs applied to the surrogate for an order dismissing the proceedings. This order the surrogate granted,, and from it the present appeal is taken.

Several objections are made by the respondent going to the validity of the original order for sale, but we do not deem it necessary to, consider them. We prefer to place our decision upon the ground that, although no opinion was written by the surrogate by which we can be informed of the specific reasons for his decision, he was justified in making his order by the fact that the creditors had been guilty of very great laches in allowing these proceedings to remain unmoved for a period of nearly ten years, long enough to justify the [445]*445belief that they had. been intentionally abandoned. Such discretion, :in our opinión, was wisely exercised by the learned surrogate, and .his order should be affirmed.

All concurred.

Order of the surrogate of Kings county affirmed, with costs.

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48 A.D. 443, 62 N.Y.S. 859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-braker-nyappdiv-1900.