Monroe v. Musica

166 A.D. 929, 151 N.Y.S. 504

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1915
• Status: Published

Opinion

Per Curiam:

The successful maintenance of an action under section 2751 of the Code of Civil Procedure

* was necessary to enable the administrator to apply in the Surrogate’s Court for the sale of the land to pay debts. Such an action was not brought either as regards the capacity in which the plaintiff sued or the subject-matter of the action. Whether the grandson could successfully assert an interest in the property may depend upon extrinsic facts not before us. But upon the record now appearing, the title is not marketable. The order should be reversed, and the motion of the purchaser to be relieved of the purchase and for a return of the deposit, with such interest as it has earned, granted, together with reasonable expenses of examining the title to be approved by the court at Special Term and payable from the proceeds of any sale that shall be had on the judgment, with ten dollars costs and disbursements of this appeal. Jenks, P. J., Thomas, Stapleton, Rich and Putnam, JJ., concurred. Order reversed, and motion of the purchaser to be relieved of the purchase, and for a return of the deposit, with such interest as it has earned, granted, together with reasonable expenses of examining the title, to be approved by the court at Special Term, and payable from the proceeds of any sale that shall be had on the judgment, with ten dollars costs and disbursements of this appeal.

Repealed by Laws of 1914, chap. 443. See Code Civ. Proe. § 2771.— [Rep.