Marvin Realty Co. v. Barre — 142 A.D. 4

Majority

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Marvin Realty Company, Respondent, v. William Barre, if Living, etc., and Others, Defendants, Impleaded with Millie H. Sayer, Appellant.

Second Department,

December 30, 1910.

Headnote

Constitutional law — registration of lands — when owner of abutting property cannot raise constitutional question.

A person made defendant in an action to. compel the registration of lands under article 13 of the Real Property Law, merely as an owner of contiguous property whose rights are not in any Way affected, cannot. attack the constitutionality of the act.

. Appeal by the defendant, Millie H. Sayer, from an interlocutory judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the'clerk of the county of Kings on the 26th day of April, 1910, upon the decision of the court -rendered after a trial at the Kings County Special Term overruling the said defendant’s demurrer to the amended complaint.

William B. Wait [Henry Crofut White and Rufus B. Cowing, Jr., with him on the brief], for the appellant.

M. E. Finnigan [John T. Eno with him on the brief], for the respondent.

I advise reversal of this judgment on the authority of Duffy v. Shirden ( 139 App. Div. 755 ), decided in this court in July, 1910.

The appellant has not such interest in this case as permits her to litigate the various constitutional. questions raised by her. This conclusion is supported by the cases cited by Rich,'' J., in our judgment in Duffy’s Case (supra), particularly that of Tyler v. Judges of Court of Registration ,( 179 U. S. 405 ). It does not appear that her rights are in any way affected, or that she has asserted any. interest pursuant to the' requirements of section 389 of the Real Property Law. She is evidently brought into the case, as the complaint shows, for the sole reason that she is an owner of part of .the

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surrounding contiguous properties, referred to in section 380 of the said law.

The interlocutory judgment must be reversed, with costs.

Woodward, Thomas, High and Carr, JJ., concurred.

Interlocutory judgment reversed, with costs.

Cases cited

Tyler v. Judges of the Court of Registration 179 U. S. 405 SCOTUS 1900-12-17 p. 4