Bayer v. Phillips — 1 N.Y. St. Rep. 762

Majority

p. 762

MINNIE BAYER, as Guardian, Etc., v. JAMES L. PHILLIPS.

Headnote

Guardian—When foreclosure action should be brought in name of

GENERAL GUARDIAN—WHEN RIGHT TO SELL THE PROPERTY WITHOUT OBTAINING ORDER OF COURT.

Case submitted without action.

p. 763

Koones & Goldman, for plaintiff.

L. M. Doseher, for defendant.

There are two points at issue in this controversy which has sprung out of the facts agreed upon. As to the first point, namely, whether the foreclosure action was properly brought in the name of Minnie Bayer, general guardian, as sole plaintiff, we think that there can be no doubt that the action was properly brought in her name, she being the trustee of an express trust within the meaning of the code.

As to the second point, we entertain no doubt that under the facts and circumstances disclosed the guardian had the right to sell the property without obtaining an order of the court therefor, and for these reasons the plaintiff is entitled to judgment, but without costs according to the stipulation.