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In re Easterly

204 N.Y. 586 Court N.Y. Decision date 1912-01-16 English

Delivered by Chase, J.

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p. 586
In the Matter of the Application of Eliza H. Easterly, as Surviving Trustee under the Will of John M. Easterly, Deceased, Respondent, for Leave to Mortgage or Sell Part of the Trust Estate. Frederic C. Easterly et al., Appellants.
(Submitted January 8, 1912;
decided January 16, 1912.)

Headnote

The opinion in this case (202 hi. Y. 466) was not intended to construe or interpret the amendment which was made by chapter 242 of the Laws of 1907 to section 87 (now 107) of the Real Property Law.
Motion for re-argument. (See 202 N. Y. 466 .)

Sometime after the decision in this court of the appeal in the case of Losey v. Stanley ( 147 N. Y.

p. 587
560 ) sections 85 and 87 of the Real Property Law as it then existed (chapter 547, Laws of 1896) were amended by chapter 136 of the Laws of 1897. Among the provisions added to section 87 by that chapter is the following: “A mortgage, conveyance or lease made pursuant to a final order granted as provided in this and the last two preceding sections shall be valid and effectual against all minors, lunatics, persons of unsound mind, habitual drunkards and persons not in being interested in the trust or having estates vested or contingent in reversion or remainder in said real property, and against all other persons so interested or having such estates who shall consent to such order, or who having been made parties to such proceeding as herein provided, shall not appear therein and object to the granting of such order.”

The amendment of 1897 could in no way affect the decision in this case, because the owners of the estate in remainder herein have, as stated in the opinion, “by answer in the proceeding and by consistent protest and argument in all the courts objected to the sale proposed by the order in this proceeding.” Said section 87 (now section 107 of the Real Property Law, chapter 52, Laws of 1909) was amended by chapter 242 of the Laws of 1907 by omitting from the provision above quoted the words, “ shall not appear therein and object to the granting of such order,” and by changing therein the words “having been made parties” to “have been made parties.”

The amendment of 1907 took effect April 30, 1907, a short time prior to the commencement of this proceeding. While the briefs of counsel herein in referring to the statute did note that it was amended in 1907 the language or effect of such amendment was in no way called to the attention of the court either by the briefs or oral argument of counsel and it was not taken into account by me when I made the statement in the opinion as follows: “We think that the order was without authority under the will or by statute.” Such amendment is specifically called to our attention 'by this motion for

p. 588
re-argument. A further examination of the record convinces us that if the amendment of 1907 has the effect claimed by counsel for the respondent nevertheless the decision on this appeal should not be changed. This further statement is made for the purpose of expressly disclaiming that the language used in the opinion reported herein in 202 N. Y. 466 was made with intent to construe and interpret the said statute of 1907. The language used in that opinion was made wholly without reference to said amendment of 1907.

The motion for re-argument should be denied, without costs.

Cullen, Ch. J., Gray, Haight, Werner, Willard Bartt/ett and Collin, JJ., concur.

Motion for re-argument denied.

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