11 Misc. 2d 855 | N.Y. Sup. Ct. | 1958
Motion for judgment on the pleadings dismissing the complaint for failure to state facts sufficient to constitute a cause of action and on the additional ground that this plaintiff is not the proper party in interest to bring this action.
On January .22, 1957, Herman Bosenbloom, then aged 85 -and the father of the plaintiff son and defendant daughters, by deed conveyed to the defendants certain real property in the county of Kings. Plaintiff alleges that at the time of such conveyance the grantor was senile and incompetent, did not know the nature and quality of his acts, that the transfer was fraudulent and thus seeks to set aside the conveyance to defendants.
A grantor, if competent, certainly has the right to convey his property freely and without hindrance. There is no legal mandate compelling a parent to hold realty for the benefit of all his heirs or that it be apportioned among them. If it be assumed that the grantor was incompetent at the time the deed was executed, then such transfer made by one of unsound mind, but not judicially declared so, is voidable and not absolutely void. Only the grantor or a subsequently appointed committee may move to set aside such a conveyance.
In Finch v. Goldstein (245 N. Y. 300, 303) the court stated: “ Until the appointment of a committee neither the State nor anyone else has any power or control over his property or any authority to act in his behalf. He alone remains in possession of his property and can dispose of it. If as a fact he be incompetent at the time he acts, his transactions may be set aside at his election either by himself or by a committee subsequently appointed.” (Emphasis supplied.)
Plaintiff herein has no interest, legal or equitable, in the claim or demand. He is not the proper party in interest. Accordingly, the motion is granted and the complaint is dismissed.
Settle order.
