Marsh v. Exempt Firemen's Benevolent Fund Ass'n

Majority

p. 887

Joseph A. Marsh, Individually and as Executor, etc., of John A. Alldritt, Deceased, Plaintiff, v. The Exempt Firemen’s Benevolent Fund Association of the Twenty-third Ward of the City of New York (Late Town of Morrisania, in the County of Westchester), in the County of New York, and Others, Defendants.

Headnote

Party -- submission of controversy.

Submission of a controversy upon an agreed statement of facts, pursuant to section 12.79 of the Code of Civil Procedure.

I do not think that these associations or corporations which unite in this submission have an interest in the controversy

p. 888

here submitted, as the testator made no bequest to either of them enf or eible or unenforeible. If there is a bequest to anybody it is to the individuals who were the widows or orphans of the members of those associations or corporations and they are not parties to the submission and, therefore, not before the court. Section 1279 of the Code of Civil Procedure, under which there can be the submission of a controversy, provides that “the parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts, upon which the controversy depends.; and may present a written submission thereof to a court of record which would have jurisdiction of an action, brought for the same cause.” It seems to me quite clear that this case as submitted to us does not fall within this provision as the widows and orphans, whoever they may .be, are not parties to the submission. The questions presented on this submission can be determined on the settlement of the accounts of the executors before the surrogate or the plaintiff to this submission may rest without taking further action until some one comes in who claims to be entitled to an interest in one of these legacies, The question of whether or not there is an enforeible legacy should be left until there are some parties before the court who' are the objects of the testator’s bounty, and I think we should express no opinion upon that question in the absence of the proper parties. It follows, therefore, that this proceeding must be dismissed, without' costs to either party. McLaughlin, Scott, Miller and Dowling, JJ., concurred. Proceeding dismissed, without costs. Order to be settled on notice.