196 A.D. 393 | N.Y. App. Div. | 1921
The question to be determined is that of the marketability of the title to a certain parcel of real property in the county of Kings. The material facts as stated in the submission are the following:
Theodore D. Cordes died in Queens, county March 30,
It is, of course, undisputed that the new Surrogates’ Code,
The defendant here insists upon the said objections as rendering the title tendered by plaintiff unmarketable. Upon the other hand, the contention of the plaintiff is that inasmuch as the letters of administration were issued prior to September 1, 1914, the proceeding to sell was properly taken and conducted in all respects under the statute in force just prior to that date. The vital points of difference between the two statutes are that the earlier one allowed the proceeding to be taken within three years after the issue of said letters and also to be taken by the creditor independently of any accounting, voluntary or involuntary, upon the part of the administratrix; while the latter imposes the limit of eighteen months after such issue and requires the proceeding to be ancillary to an accounting. (See Code Civ. Proc. §§ 2749, 2750, as amd. by Laws of 1894, chap. 735, and Laws of 1909, chap. 183.) The plaintiff contends, however, that by section 3352 of the Code of Civil Procedure and section 93 of the General Construction Law the right to take the proceeding to have the real estate sold, having then accrued, was preserved. Said section 3352 provides in substance that the provisions of the act shall not render ineffectual or impair any right lawfully accrued or established before any given such provision takes effect; but that, so far as may be necessary to avoid such a result, the statutes in force on the day before the provision takes effect are deemed to remain in force. Said section 93 provides in effect that the repeal of a statute or a part thereof shall not affect or impair any “ right accruing, accrued or acquired * * * prior to the time such repeal takes effect.” This construction of the plaintiff, at least so far as the time limit is concerned, seems to me to be fully sustained by O’Flynn v. Powers (136 N. Y. 412) and. Williamson v. Field (2 Sandf. Ch. 533, 569). In the former case the will was probated in 1873. There- was then and thereafter until 1880 no time' limit upon the right of the
The defendant here, moreover, contends that even if it be true that the old statute limitation still applies as to rights existing before September 1, 1914, when the new act went into effect, still the method of proceeding of the new statute applies and governs, namely, that the proceeding must be part and parcel of an .accounting and not an independent one. The argument of defendant’s counsel here is that that provision affects merely the remedy and not the right and that, therefore, the new statute so far merely as it changes the remedy became effective even in the enforcement of the preserved pre-existing right. There is much apparent force in that reasoning. It seems, however, to have been practically considered and rejected in Matter of Iovinella (166 App. Div. 460; appeal dismissed, 214 N. Y. 688). In that case it was held that, the provisions of the new Surrogates’ Code; allowing jury trial in the Surrogate’s Court were not applicable to a probate proceeding pending on September 1, 1914;: but that section 93 of the General Construction Law kept the old section 2653a of the Code of Civil Procedure “ alive for the purpose of permitting the contestant to prosecute his action in the Supreme Court, that right laving; ‘ accrued. ’
Therefore, I conclude that plaintiff is entitled to judgment upon the submission for the relief asked, namely, specific performance, with costs.
Hence I advise decision and judgment accordingly.
Rich, Putnam, Blackmar and Kelly, JJ., concur.
Judgment for plaintiff for the specific performance asked, with costs. Settle order on notice.