Majority
p. 841In the Matter of the Application of Rocco Marino and Another to Sell and Convey a Certain Piece of Real Property in which Rocco Loya, an Infant, etc., is Interested. Hermann N. Holde, Special Guardian, etc., Appellant; Frank Calimero and Another, Purchasers, Respondents.
Order granting motion for return of down payment on contract affirmed, without costs. The infancy
p. 842
proceedings were conducted wholly on the theory that the infant possessed an absolute fee title. We think this is not so under the terms of the will, and that the title expected by the purchasers could not be given. An infancy proceeding is a judicial proceeding, and a sale made in conformity therewith is a judicial sale. On such a sale the court may relieve the purchaser if the title is defective or unmarketable. Kelly, P. J., Rich, Manning, Kapper and Lazansky, JJ., concur.