Van Veghten v. Maby

24 Misc. 2d 1019, 205 N.Y.S.2d 475, 1960 N.Y. Misc. LEXIS 2364

Opinion

Biohabd J. Shebman, J.

This is an action brought for the partition and sale of real property situate on Park Avenue in the City of Mechanicville, Saratoga County, New York. The real property is owned by the parties to this action as tenants in common.

Heretofore, the motion was for the sale of the property by parcels. The defendant, Marion E. Maby, has brought a motion for reargument of the decision heretofore given. Section 986 of the Civil Practice Act is [in part] as follows: ‘ ‘ If the property consists of two or more distinct buildings, farms or lots, they shall be sold separately unless otherwise ordered by the court; but where two or more buildings are situated in the same city lot they shall be sold together.”

I am granting the motion for reargument and deciding the issue based upon the interpretation of the foregoing section.

The property should be sold in one piece and in the alternative by parcels. I assume that this means that every effort should be "made to sell the property as one parcel, but in the event of the failure to do so, then the property should be divided and sold as so divided.

This court is constrained to follow section 986 but believes there should be clarification of the section upon appeal.