In re Marsac

15 How. Pr. 383

• Court: New York Supreme Court
• Decided: September 15, 1856
• Status: Published

Opinion

Birdseye, Justice.

The 2d section of chap. 277 of the laws of 1852, directs that the authority prayed for in this petition shall not be given, and that no partition or sale shall be directed by the court, “ unless it shall be made satisfactorily to appear that the interests of such infant require such partition or sale.”

' I do not find in the papers before me, átoy evidence whatever that the interests of these infants cannot be sold for their full value, in the manner by which alone they could have been sold prior to the act of 1852. If such a sale can be effected, the whole expense of a partition suit will be saved. If, however, that cannot be done, it will be easy to make the fact appear; as by showing that the co-tenants have been applied to, to purchase and have refused, or that they are unable, or that they had notice of the proceedings before the referee, &c.

The order of reference heretofore made in this matter is not presented to me. But before the court can grant such application as this, I think there should be something more than the mere statement of the referee, “ that in his opinion it would be proper to allow said infants to prosecute an action for the partition or sale of the real estate mentioned in the petition.” Under the statute cited, the facts which warrant such a conclusion, should be set forth in the report; that the court may judge upon them whether the necessity exists for a proceeding so protracted and expensive as that here sought to be instituted.