143 Misc. 732 | N.Y. Sur. Ct. | 1932
On August 10, 1931, an order was signed by this court approving the terms of a contract for the sale of certain real property in the above estate, situate in the city of Saratoga Springs. The contract was duly executed by Carl L. McMahon, an attorney of Saratoga Springs, the purchaser, and by John Theodore, the administrator of the above estate. The order authorized the administrator to sell said premises to Mr. McMahon on the terms of the order, to wit: “ $500 upon receipt of a copy of this Order and $1,500 on September 1, 1931, at which time said Administrator shall give a Deed of said property, which he is authorized to do and to take back a first mortgage on the same in the amount of $3,500 payable to said John Theodore, as guardian of the infants, Herman Desotelle, Victor Desotelle, and Royce Desotelle, which mortgage shall be paid as follows: $875 together with interest on the first of September each year hereafter until said mortgage is paid.”
The following is a correct copy of the contract:
“ I hereby agree to buy the premises located at #317 Nelson Avenue, Saratoga Springs, N. Y., and to pay therefor the sum of $5,500, in the following manner: $100 deposit on the execution of this offer, $400 upon receiving a copy of an order of the Clinton County Surrogate, confirming sale, $1,500 on September 1, 1931.
“A Deed with evidence of clear title is to be delivered to me September 1, 1931, at which time I will deliver my bond and mortgage on said premises to the administrator in the sum of $3,500, payable in four years.
“ I will pay $875, together with the interest on the principal sum due on each succeeding September 1st and upon the payment of said installments the seller or his successor is to deliver to me a Satisfaction of such mortgage.
“ I am to be given immediate possession. In case of default on this agreement, the $100 deposit is forfeited for the purpose of paying the costs incidental to this proceeding, and I agree to pay $50 per month rent while I am in possession.
“ CARL L. McMAHON.
“ The above offer is hereby accepted subject to the approval of the Surrogate of Clinton County.
“ JOHN THEODORE.”
Thereafter and on January 23, 1932, upon the affidavits of the administrator and his attorney, Victor F. Boire, an order was granted by the county judge of Clinton county, as acting surrogate, directing the said Carl McMahon to show cause why an order should not be made revoking and vacating the above-mentioned order of this court approving said sale, as above mentioned, and why he should not be directed to vacate the premises described in said order authorizing such sale. An answering affidavit was duly filed by the said Carl McMahon to said order to show cause and a reply affidavit was duly filed by the attorney for the petitioner.
The substance of the affidavit of Mr. McMahon is to the effect that he is not in default under the terms of the contract of sale and the order approving the contract of sale and authorizing the administrator to complete the same, but that the administrator is in default in failing to deliver to him a copy of the order of this court “ confirming sale ” of said premises as provided in the contract. The affidavits of the petitioner’s counsel set forth very clearly that Mr. McMahon was duly advised of the entry of said order authorizing such sale, and that correspondence between him and Mr. McMahon indicated that Mr. McMahon advised the attorney for the petitioner that he would come to Plattsburgh and arrange to close the matter. Such allegations are not denied by Mr. McMahon, although he does deny having advised the attorney for the petitioner that he could not pay the sum of $400 which became due upon the entry of the order approving the contract of sale. After alleging, as above mentioned, that he is not in default under the contract, Mr. McMahon, in bis affidavit asks that he be not evicted from the premises until May 1, 1932.
I am not impressed with the sincerity of the allegations in Mr. McMahon’s affidavit. He is an attorney and he must be presumed to be familiar with the proceedings in a Surrogate’s Court for the sale of real property. His defense that he is not in default under the contract in not making a payment of $400 upon the entry of the above-mentioned order, rests upon the language of the contract which provided that $100 should be deposited upon the execution of the contract and $400 should be paid by him upon receiving a copy
Has this court the power to vacate the order authorizing such sale and also to direct Mr. McMahon to vacate the premises described in the contract?
Subdivision 6 of section 20 of the Surrogate’s Court Act provides that a surrogate, in or out of court, has power “ To open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision must be exercised only in a like case, and in the same manner, as a court of record and of general jurisdiction exercises the same powers.”
The petitioner does not allege fraud, newly-discovered evidence
I believe that the proof in this case justifies a finding that within the terms of the statute “ sufficient cause ” exists as a basis for this application. The purchaser, an attorney, does not raise the question of the jurisdiction of this court to grant the relief asked for in the petition. He asks that the prayer of the petitioner be not granted because the petitioner did not serve him with a copy of the order of this court “ confirming sale.” While such attitude cannot be construed as evidence of fraud on the purchaser, it can certainly be construed as evidence of bad faith on his part, for as hereinbefore stated, his knowledge of the procedure for the sale of real estate in a Surrogate’s Court must be presumed and no order “ confirming sale ” could have been made pursuant to the terms of the contract.
If an order be granted vacating the prior order of this court, can it be said that such power has been exercised in a “ like case ” and in the “ same manner ” as a court of record and of general jurisdiction would exercise the same powers? In Matter of Henderson (157 N. Y. 423, 428) the court construed the meaning of the terms “ like case ” and “ same manner ” in the above-mentioned statute, as follows: “ The statute, in speaking of a like case, means that the party making the motion must show the existence of the error or mistake in the same way as if the record was in the other court, and, in providing for the exercise of the power in the same manner, all that is meant is that the surrogate shall proceed in the same way to hear the application. Proof must be made, notice given and a judicial hearing of the parties had, but there is
Section 131 of the Civil Practice Act provides that except wherein such an order grants a provisional remedy, it may be vacated or modified without notice by the judge who made it, or upon notice by him or by the court. This section would seem to provide the procedure referred to in subdivision 6 of section 20 of the Surrogate’s Court Act, wherein it is directed that the authority therein granted to a surrogate must be exercised in the “ same manner ” as is exercised by a court of general jurisdiction, exercising the same powers. It would seem that the procedure followed upon this application, as herein stated, has been in the “ same manner ” as would have been followed in a “ like case ” in a court of general jurisdiction.
Has this court power in this proceeding to direct that the purchaser herein be evicted from the premises in question? While the equitable jurisdiction of this court, under section 40 of the Surrogate’s Court Act, has been liberally construed, I do not find any authority which would seem to authorize this court to direct the purchaser herein to be so evicted from the premises described in the contract. Upon vacating the prior order of this court in this matter the petitioner herein can have the question of eviction determined in the proper court, whose jurisdiction in such matter cannot be questioned.
An order may, therefore, be entered vacating and setting aside the order of this court dated August 10, 1931, as herein referred to and disapproving the proposed sale of said premises to the said Carl McMahon under the contract herein mentioned.
Prepare decree accordingly.