In re Cavanagh

New York Supreme Court

In re Cavanagh

37 Barb. 22, 1862 N.Y. App. Div. LEXIS 88

DecidedFebruary 3, 1862

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Bluebook

In re Cavanagh, 37 Barb. 22, 1862 N.Y. App. Div. LEXIS 88 (N.Y. Super. Ct. 1862).

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Opinion

By the Court,

Clerke, J.

I think it would be contrary to that caution with which we have always acted, in relation to applications of this kind, to compel the purchaser in this case, to complete his purchase. There seems to be a considerable diversity of opinion whether a partition of real property can now • be effected by a petition. According to the opinion of Mr. Justice Pratt in Croghan v. Livingston, (17 N. Y. Rep. 218; S. C., 6 Abb. Pr. Rep. 350,) this mode of proceeding is abolished. He deems the proceedings by summons and complaint the only existing form of remedy for partition. This might be considered a dictum, not having been necessary to the decision of the question before the court at the time. But the point' seems to have been carefully considered by the judge, and his opinion is unhesitating and unqualified. The same opinion has been expressed by other judges, and it is a very prevalent one in the profession. Without venturing now to say that it is well founded, the doubts referred to make it safer, and more in conformity with [24]*24our usual course, not to compel the purchaser, under such circumstances, to complete his purchase.

[New York General Term, February 3, 1862.

I think the order should be reversed, the purchaser relieved, and his deposit repaid.

Judgment accordingly.

Ingraham, Leonard and Clerke, Justices.]

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By the Court,

Clerke, J.

I think it would be contrary to that caution with which we have always acted, in relation to applications of this kind, to compel the purchaser in this case, to complete his purchase. There seems to be a considerable diversity of opinion whether a partition of real property can now • be effected by a petition. According to the opinion of Mr. Justice Pratt in Croghan v. Livingston, (17 N. Y. Rep. 218; S. C., 6 Abb. Pr. Rep. 350,) this mode of proceeding is abolished. He deems the proceedings by summons and complaint the only existing form of remedy for partition. This might be considered a dictum, not having been necessary to the decision of the question before the court at the time. But the point' seems to have been carefully considered by the judge, and his opinion is unhesitating and unqualified. The same opinion has been expressed by other judges, and it is a very prevalent one in the profession. Without venturing now to say that it is well founded, the doubts referred to make it safer, and more in conformity with [24]*24our usual course, not to compel the purchaser, under such circumstances, to complete his purchase.

[New York General Term, February 3, 1862.

I think the order should be reversed, the purchaser relieved, and his deposit repaid.

Judgment accordingly.

Ingraham, Leonard and Clerke, Justices.]

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37 Barb. 22, 1862 N.Y. App. Div. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cavanagh-nysupct-1862.

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