Therasson v. Thompson

Headnote

Therasson v. Thompson, 171 App. Div. 929 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 9, 1915, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of a contract to purchase real property. The issue in this case was whether or not plaintiff’s title to the premises, sought to be conveyed, was good as to the undivided one-quarter part thereof which comes through Arthur W. Palmer, an incompetent. Defendant by her answer and upon the trial claimed that plaintiff’s title to such one-quarter was bad because, as she alleged: 1. The premises sought to be conveyed to her, i. e., such undivided one-quarter, were not described in the petition of the committee of Arthur W. Palmer, as originally filed, and wherein she asks the court to authorize the sale of the incompetent’s share or interest. 2. Because the alleged defect, consisting of the absence in the said original petition of a description of such undivided • one-quarter, was not cured by the order amending petition nunc pro tunc so as to include such- a description for the reasons that the affidavit upon which the order amending the petition was granted was not made by the committee, but by her attorney; that the court had no authority to amend the petition nunc pro tunc in the respect noted; that the court had no power to make the bond theretofore filed applicable to the property included by such amendment and that no petition amended as provided in the order of amendment was thereafter filed.