In re Leave to Sell Real Estate of Wilbert

228 A.D. 703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1930
• Status: Published

Opinion

Order granting petitioner’s motion to compel the purchaser, appellant, to complete her purchase of certain real property reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, without costs. The petition in the proceeding to sell the infant’s property was insufficient in that (1) it failed to comply with rule 297 of the Rules of Civil Practice, in respect to stating in an adequate manner the value of the property involved, and (2) the death of Philip Wilbert was not established in a manner that would exclude reasonable probability of his continued existence. His absence for thirteen years under the circumstances disclosed herein, considered in the light of the effect of section 341 of the Civil Practice Act, under the eases, did not establish his death, and, therefore, did not establish that he had no interest in the property involved herein. At least that is so in a proceeding of this character, because the uncertainty respecting his death and his lack of interest in the property entitles a purchaser reasonably to say that he might be subjected to a hazard in this regard. (Vought, v. Williams, 120 N. Y. 253; Cerf v. Diener, 210 id. 156; Matter of Bd. of Education of New York, 173 id. 321; Dworsky v. Arndtstein, 29 App. Div: 274.) Appeal from order denying motion for reargument dismissed, without costs, in view of the foregoing decision. Lazansky, P. J., Rich, Young, Kapper and Carswell, JJ., concur.