Majority
p. 718In the Matter of the Petition of Benjamin C. Miller to Sell Real Estate of Helen E. Vick for the Payment of Debts. (Supreme Court, Appellate Division, Fourth Department, Filed Feb’y 7, 1896.)
Headnote
Executors—Sale of real estate—Petition.Under section 2474 of the Code, a motion to dismiss a proceeding for the sale of real estate for the payment of debts on the ground of insufficient showing of facts in the petition is properly denied, where it appears that no-final order directing such sale has been made.
Appeal from an order, denying a motion by the heirs of decedent to dismiss the proceeding.
P. M. French, for app’lt; W. E. Davis, for resp’t.
— The surrogate’s court has made no final order directing a sale of the decedent’s real estate for the payment of debts. This is an appeal from an order denying a special motion made by the heirs of the decedent to dismiss this proceed
p. 719
ing. When the case is heard in surrogate’s court it may be shown that all of the facts which the appellant asserts should, have been alleged in the petition actually exist, and so the case will be brought within section 2474 of the Code of Civil Procedure, and then the surrogate’s court may, if it is deemed proper,, permit the amendment of the petition.
Order affirmed, with §10 costs and disbursements.