85 N.Y.S. 601 | N.Y. App. Div. | 1904
On the 4th day of February, 1902, the plaintiff and defendant entered into a contract, in writing, whereby the defendant agreed to convey to the plaintiff on March 14, 1902, the premises known as 2220 Eighth avenue, in the borough of Manhattan,, in the city of New York, for the sum of $23,500, payable as follows: $500 upon the execution of the contract, $14,500 by assuming a mortgage of that amount, and $8,500 in cash upon the delivery of the deed. The time for. closing was thereafter extended to March 16, 1902. At the time fixed the defendant tendered the purchase price and the plaintiff tendered'a deed, which the defendant refused to take, upon the ground that there was a defect in the plaintiff’s title. The alleged defect was claimed to be in a deed, in plaintiff’s chain of title, from William A. Boyd, a referee in partition, to William C. Lester, dated February 24, 1883. It was stipulated at the trial that the validity of the plaintiff’s title depended upon the regularity of .the proceedings in the action, of partition, wherein this deed was given. That action was brought to partition the real estate of one Thomas Green, who died in about the year. 1834, intestate as to the property in question. In that action there was the usual reference to ascertain to whom the title descended, and witnesses were produced who testified that the said Thomas Green left him surviving four brothers and two sisters, whom the witnesses named, and told when each one of them died, what heirs at law .and next of kin
There is: much ground from which to infer that there were no-other heirs at law survivors of Thomas Green, save those averred in the complaint and stated in the testimony of the witnesses. The language used by the witnesses is, “ left him surviving,” and then names-the.persons. -It. omits the -words “ his only heirs^a-tdaw,”" which was a statement of the complaint in the partition action. In. addition to this, it appears that Thomas Green left a will, but did not devise this property therein. It refers to his wife,, but makes-no mention of any children. If he had children they were clearly cut off by his will from any share in the property devised thereunder, and if he had children and intended to disinherit them, it; is-somewhat singular that he did not make mention of such fact, and still stronger would be the circumstance that no child or children appeared to contest the will. In Greenblatt v. Hermann (144 N. Y. 13) it appeared that a petition was presented for the- sale of decedent’s real estate for the payment of his debts, pursuant to the-provisions of section 2752 of the Code of Civil Procedure, which pro vides, that-the petition -in.such case^shall “set forth, * * '* as-
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Interlocutory judgment affirmed,, with costs.