Haley v. Sheridan

• Decision Date: 20 December 1907
• Citation: 190 N.Y. 331,83 N.E. 296
• Parties: HALEY v. SHERIDAN et al.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 331

83 N.E. 296

HALEY

v.SHERIDAN et al.

Court of Appeals of New York.

Dec. 20, 1907.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Annie C. Haley against Annie Sheridan, the people of the state of New York, and others for partition. From a judgment of the Appellate Division (100 N. Y. Supp. 1119,114 App. Div. 903) affirming a modified judgment for plaintiff, the people appeal. Affirmed.

See 95 N. Y. Supp. 42,46 Misc. Rep. 506.

On the 5th day of November, 1903, Mary McArdle, a citizen of the United States, died intestate a resident of the city of New York, seised in fee of a certain piece or parcel of real property known as 220 Spring street, in said city. She did not leave her surviving a descendant, father, mother, brother, sister, or the descendant of a deceased brother or sister. Her only heirs at law were Annie Sheridan, an aunt, James Tully, an uncle, Matthew Tully, Maria Tully, and Annie C. Haley, the children of Matthew Tully, a deceased uncle. Said James Tully was a nonresident alien, and a citizen and subject of Great Britain, residing in Ireland. He was never within the United States, and never made or filed the depositions required by sections 4 and 5 of the real property law. Laws 1896, p. 560, c. 547. Said James Tully died intestate in Ireland on March 5, 1904, leaving him surviving his widow, Mary Tully, and one child, a daughter, Margaret Kerr. Said Mary Tully, the widow of James Tully, is a nonresident alien and a citizen and subject of Great Britain, residing in Ireland, and she has never made or filed the deposition required by sections 4 and 5 of the real property law. Said Margaret Kerr became a citizen of the United States by the naturalization of her husband December 11, 1903. This action was commenced by the said Annie C. Haley to partition said real property. Answers were interposed on the part of the defendants, including the defendant the people of the state of New York, and the issues were tried at a Special Term. An interlocutory judgment was entered, in which it was decreed that ‘the defendants Margaret Kerr and Bernard Kerr, her husband, and Mary Tully, widow of James Tully, have not nor has any of them any right, title, share, or interest of any nature or character’ in said real property. And it was further adjudged that ‘subject to said mortgage [a mortgage on the real property] and to the payment of the transfer tax upon the estate of the said Mary McArdle, deceased, the defendants the people of the state of New York are seised in fee of an undivided one-third interest in said premises.’ An appeal was taken from said interlocutory judgment by the said Margaret Kerr and Mary Tully, and the Appellate Division modified said interlocutory judgment by striking therefrom the provisions hereinbefore quoted, and inserting in the place thereof provisions as follows: ‘Subject to said mortgage and the payment of the transfer tax upon the estate of the said Mary McArdle, deceased, and the dower of Mary Tully, widow of James Tully, deceased, the said defendant Margaret Kerr is seised in fee of an undivided one-third interest in said premises, and subject to said mortgage and said transfer tax the said defendant Mary Tully, widow of James Tully, deceased, has a life interest in an undivided one-third of the said one-third interest in said premises of which the said James Tully died seised.’‘That the defendants the people of the state of New York have not any right, title, share, or interest of any nature or character in the premises hereinbefore described, except the rights and interests of the said people of the state of New York in respect to the transfer tax upon the estate of said Mary McArdle, deceased.’ A final judgment was entered upon said interlocutory judgment, and, after the modifications of said interlocutory judgment as stated, the final judgment was modified accordingly. An appeal was taken from said modified final judgment to the Appellate Division of the Supreme Court, where the same was in all respects affirmed. This appeal is taken by the people of the state of New York from the judgment of the Appellate Division affirming said modified final judgment, and in the notice of appeal it is stated that the appellant intends to bring up for review the interlocutory judgment as modified by the Appellate Division of the Supreme Court.William Schuyler Jackson, Atty. Gen. (James A. Donnelly and Lewis Ogden O'Brien, of counsel), for appellant.

John J. Clancy (Henry Melville, of counsel), for respondents.

CHASE, J. (after stating the facts as above).

When the real property law (Laws 1896, p. 559, c. 547) was enacted all prior statutes in any way relating to aliens taking, holding, conveying, and transmitting real property were repealed. At that time the disabilities of aliens relating to real property, claimed through descent or devise from some person who was at the time of his death a citizen of the United States, had for about three years been wholly removed by chapter 207, p. 365, Laws 1893, as therein stated. That act provided as follows: ‘Any person who would otherwise answer to the description of heir or devisee of a person, who, at the time of his death, was a citizen of the United States, shall be entitled to inherit or take from said citizen, and hold, enjoy, convey, transmit and devise any interest in real property situated in this state, in the same manner and to the same extent and with the same effect as if he was himself a citizen of the United States, notwithstanding the fact that he be a nonresident alien; ant the fact that any person otherwise qualified to take, hold, enjoy, convey, transmit and devise any interest in real property situated in this state, is a nonresident alien, shall not prevent his taking, holding, enjoying, conveying, transmitting and devising such interest, providing his title, or that of some person under whom he claims, shall be derived, by descent or devise, from some person who was, at the time of his death, a citizen of the United States.’ The commissioners of statutory revision, in reporting the proposed real property law in 1896, said: ‘If the revision becomes a law, nonresident aliens, with the exception contained in section 6, and as their rights may be extended by treaties of the United States with foreign governments, will be unable to take and hold real property within the state. This, it is believed, effects no substantial change in the general policy of the state, which, until 1893, seems to have uniformly required residence and the filing of a deposition in order to entitle an alien to hold real...