Wagner v. Volkian Realty Corp.

Appellate Division of the Supreme Court of New York

Wagner v. Volkian Realty Corp.

186 A.D. 966

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1918

StatusPublished

This text of 186 A.D. 966 (Wagner v. Volkian Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wagner v. Volkian Realty Corp., 186 A.D. 966 (N.Y. Ct. App. 1918).

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Opinion

Section 1279 of the Code of Civil Procedure provides that “ The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts, upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action, brought for the same cause.” . A condition precedent to a valid submission is that the question in difference might be the subject of an action. The question submitted to this court is not the subject of an action and can be properly raised only upon a motion in the action for partition pending in the Supreme Court. (Crane v. Robinson, 19 Misc. Rep. 40; Miller v. Collyer, 36 Barb. 250.) The proceeding is, therefore, dismissed, without costs, and without prejudice to an application for the same relief, to be made by motion in the court where the action for partition is pending. Jenks, P. J., Thomas, Rich, Putnam and Blackmar, JJ., concurred.

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Section 1279 of the Code of Civil Procedure provides that “ The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts, upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action, brought for the same cause.” . A condition precedent to a valid submission is that the question in difference might be the subject of an action. The question submitted to this court is not the subject of an action and can be properly raised only upon a motion in the action for partition pending in the Supreme Court. (Crane v. Robinson, 19 Misc. Rep. 40; Miller v. Collyer, 36 Barb. 250.) The proceeding is, therefore, dismissed, without costs, and without prejudice to an application for the same relief, to be made by motion in the court where the action for partition is pending. Jenks, P. J., Thomas, Rich, Putnam and Blackmar, JJ., concurred.

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186 A.D. 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-volkian-realty-corp-nyappdiv-1918.

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