101 N.Y.S. 812 | N.Y. App. Div. | 1906
-This is an action in ejectment to recover an undivided one-seventh and undivided one-forty-second. interest in real property situated in the county of New York. ' On. the 1st day- of September, 1849, one James B. Shaw owned the premises in question in fee simple absolute and was in possession thereof. On that day he mortgaged the premises to secure the payment of the sum of $5,700- and the mortgage was duly recorded. Thereafter, and on the 5th day of October,. 1849, Shaw conveyed the premises to Farrell Lunny, who, On the 1st day of Jamiary, 185Ó, died intestate.seized of the premises-subject to the mortgage, leaving him surviving his widow and seven infant children, including the plaintiff, who was not born until the fifth day of August thereafter. In. the month oj February, 1850, Jane Lunny,. one of the- infant children-of Farrell Lunny, died intestate. . On the 18th day of April, 1850^ by infancy proceedings
It follows, therefore, that as this action in ejectment cannot be maintained, the judgment is right and should be affirmed.
Patterson, Ingraham, McLaughlin and Clarke, JJ., concurred.
. Judgment affirmed, with costs. Order hied.