Stock v. Mann

• Decision Date: 19 November 1930
• Citation: 174 N.E. 76,255 N.Y. 100
• Parties: STOCK et al. v. MANN et al.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 100

174 N.E. 76

STOCK et al.

v.MANN et al.

Court of Appeals of New York.

Nov. 19, 1930.

Action by Emma M. Stock and others against William Dunham Mann and others. From an order of the Appellate Division (229 App. Div. 19, 241 N. Y. S. 35), reversing on the law two orders of the Special Term (132 Misc. Rep. 474, 230 N. Y. S. 107), which denied motions made by purchaser at a judicial sale to be relieved of his purchase, plaintiffs appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

George H. Witbeck, of Albany, for appellants Stock et al.

James L. Nesbitt and Lewis R. Conklin, both of New York City, for appellant Henry B. Newhall, as committee for Edith Kimball.

John J. McManus, of Albany, for respondent.

O'BRIEN, J.

Sarah A. Kimball died seized of a life estate in certain real property in Albany. In this action for partition an interlocutory judgment of sale was entered and respondent Richman was the purchaser. He refused to accept the deed tendered by the referee and his motions to be relieved of his purchase on the ground that a marketable title cannot be given were denied. The orders denying them were reversed on the law. By the practice of this court such an order is deemed final, and therefore appealable. Smith v. Secor, 157 N. Y. 402, 52 N. E. 179;Kingsland v. Fuller, 157 N. Y. 507, 52 N. E. 562;Merges v. Ringler, 158 N. Y. 701, 53 N. E. 1128;Matter of Young, 242 N. Y. 237, 151 N. E. 218;Kassin v. M. & L. Building Corporation, 243 N. Y. 376, 379, 153 N. E. 559;Batchelar v. Batchelar, 244 N. Y. 274, 155 N. E. 123.

Among the fifty-eight named defendants alleged in the complaint to possess rights in this real property as heirs at law is Edith Kimball to whom is assigned a 1/31 interest. She is an incompetent residing in Rhode Island. She was never served in this action nor did she authorize an attorney to appear for her. Henry B. Newhall was acting as the conservator of her estate in Rhode Island by appointment of an appropriate court of that state, but at the time of the entry of the interlocutory judgment of sale no committee had been appointed in this state. Nevertheless,he assumed to authorize an attorney to appear for her in this action. After the entry of the judgment of sale he was appointed in this state as committee of her property here by an order nunc pro tunc, as of September 30, 1924, and with the same force and effect as if entered on or before that date.

A foreign conservator, as such, has no power to authorize in this state the appearance of one who has been adjudged an incompetent elsewhere but not here. His attempt to do so is a nullity and later action cannot ratify an act which was originally bare of all power to confer jurisdiction. An order may not be made nunc pro tunc which will supply a jurisdictional defect by requiring something to be done which has not been done. Mishkind-Feinberg Realty Co. v. Sidorsky, 111 App. Div. 578, 583, 98 N. Y. S. 496, affirmed, 189 N. Y. 402, 82 N. E. 448. Authority resides in our courts to appoint a committee of the property in this state of an incompetent residing elsewhere. An appointment so made may, in the discretion of the court, relate to the individual who acts as conservator in a foreign state (Civil Practice Act, § 1363; Matter of Curtiss, 199 N. Y. 36, 92 N. E. 396), but it must precede the appearance of the...