In re Callahan

258 A.D. 766, 14 N.Y.S.2d 720, 1939 N.Y. App. Div. LEXIS 6805

Opinion

Appeal from an order of the Special Term of the Supreme Court, made on May 11, 1939, and entered in the Hamilton county clerk’s office. This is a proceeding to perpetuate the testimony of certain witnesses with relation to the title and possession of real estate. The petition alleges and the answering affidavits deny that the petitioners have been in possession of the premises in question for the year next preceding the institution of this proceeding. The order appealed from directed that the issues raised by the petition and answering affidavits as to possession be referred for the purpose of taking and reporting to the Special Term the proof in support of the allegations of the petition and in opposition thereto. The appellants contend that the Special Term was without jurisdiction to grant such an order and also that it could not properly be granted because an action concerning the title to the land was then pending. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Bliss, Heffernan, Sehenek and Foster, JJ.