10 N.Y.S. 429 | N.Y. Sup. Ct. | 1890
There being no evidence furnished to the court that the papers, as required by the provisions of the Code, have been filed with the clerk of the court, we might very well on that ground decline to entertain the submission. In order that the court may acquire jurisdiction it is necessary that proof should be furnished of the jurisdictional facts, one of which is that papers should be filed in the office of the county clerk. The plaintiff in this action entered into a contract whereby he agreed to sell to the defendant certain premises. At the time fixed for the delivery of the deed the defendant refused to take title, upon the ground that the trust attempted to be created by the will of one Fisher, of whom the plaintiff was acting as executor, was invalid, in that it unlawfully suspended the power of alienation; and that the power of sale in the will is inseparably connected with the trust, and falls with it; and also that, if the trust is adjudged to be valid, the plaintiff has no