217 A.D. 422 | N.Y. App. Div. | 1926
Peter Ort and Eliza P. Ort, his wife, were the owners as tenant^ by the entirety of certain real estate in the city of Johnstown, N. Y. Eliza died January 23, 1919, and her husband, Peter Ort, thereupon became sole owner in fee of said
We do not find in the statute authority for said order. The language of the statute is that the surrogate may confer upon the temporary administrator “ authority to take possession of real property * * * and to receive the rents and profits thereof or to do any other act with respect thereto,” which may be necessary for the preservation of the • property. (Surrogate’s Court Act, §§ 130, 131.) This is merely a grant of power or authority to the administrator. The purpose of the statute is to empower the administrator to protect, care for and preserve property belonging to the estate which otherwise would be without protection and subject to waste. Cases frequently arise where property is idle and exposed to deterioration and there is no one clothed with authority to interfere. Such are the cases within the contemplation of the statute. But there is nothing in the statute which implies the power of the surrogate to summarily order the surrender of the property by a person holding the same in hostility to the owner even though such hostile tenure be without claim of title or shadow of right. The statute rather implies the contrary for it expressly provides that “ for either of these purposes [the purposes of the statute], „he [the administrator] may maintain or defend any action or special proceeding.” (§ 130.) Whatever rights the administrator has as against the appellants he should prosecute in the usual manner. We are referred to no analogous statutory provision relating to an executor or administrator-in-chief and it cannot
The order should be reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concur.
Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.