In re Baker — 62 N.Y.S. 859

Majority

p. 859

In re BAKER.

(Supreme Court, Appellate Division, Second Department.

March 6, 1900.)

Headnote

Executors and Administrators— Actions—Abandonment—Laches.

Where a creditors’ petition for the sale of a deceased debtor’s real estate was permitted to lie dormant for nearly 10 years, the surrogate was justified in dismissing the proceedings on the ground of loches.

Appeal from surrogate’s court, Kings county.

p. 860

Application -by H. J. Baker, a member of the firm of H. J. Baker & Bro., creditors of Thomas Flanagan, deceased, to compel the administratrix to sell deceased’s real property for payment of debts. From an order of the surrogate of Kings county dismissing the petition, the petitioner appeals.

Affirmed.

Argued before GOODBICH, P. J., and BABTLETT, HATCH, WOODWABD, and HIESCHBEBG, JJ.

Horace Graves, for appellant.

B. P.. Stratton, for respondent Kormic J. Flanagan.

Thomas Flanagan died intestate in April, 1887, leaving, him surviving, a widow and several infant children. There was some personal property, but it was inadequate to the payment of the intestate’s indebtedness; and in 1889 the members of the firm of H. J. Baker & Bro., including the appellant, obtained a judgment against the administratrix. In January, 1889, they presented to the surrogate of the county of Kings a petition for the sale of the real estate of the intestate. There is a conflict in the record as to what subsequent proceedings were had, but it is not disputed that nothing has ever been done since April, 1890, when, as the appellant claims, a decree of sale was made by the surrogate. The excuse presented for this delay is that it occurred at the request of the widow, but as there were other parties interested, including some infants, we do not consider the excuse sufficient. In 1899 an action for the partition of the real estate was commenced, in which an interlocutory judgment and decree of sale were made, and the premises sold in June, 1899; and apparently the purchaser refused to take title on account of the pendency of the proceedings for the sale in the surrogate’s court. Accordingly one of the heirs applied to the surrogate for an order dismissing the proceedings. This order the surrogate granted, and from it the present appeal is taken.

Several objections are made by the respondent, going to the validity of the original order for sale, but we do not deem it necessary to consider them. We prefer to place our decision upon the ground that, although no opinion was written by the surrogate by which we can be informed of the specific reasons for his decision, he was justified in making his order by the fact that the creditors had been guilty of very great loches in allowing these 'proceedings to remain unmoved for a period of nearly 10 years,—long enough to justify the belief that they had been intentionally abandonéd. Such discretion, in our opinion, was wisely exercised by the learned surrogate, and his order should be affirmed.

Order of the surrogate’s court of Kings county affirmed, with costs. All concur.