NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
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TABLE OF CONTENTS
Article 1 Short Title; Definitions; Jurisdiction of Certain
Actions; Construction of Act
Article 2 General Provisions Governing Real Property Actions
Article 3 Provisions Relating to Evidence
Article 4 Valuing Interests in Real Property
Article 5 Adverse Possession
Article 6 Action to Recover Real Property
Article 7 Summary Proceeding to Recover Possession of Real
Property
Article 7-A Special Proceedings by Tenants of Dwellings in the
City of New York and the Counties of Nassau,
Suffolk, Rockland and Westchester for Judgment
Directing Deposit of Rents and the Use Thereof for
the Purpose of Remedying Conditions Dangerous to
Life, Health or Safety
Article 8 Waste and Other Actions and Rights of Action for
Injury to Real Property
Article 9 Action for Partition
Article 10 Action for Dower
Article 11 Proceeding to Discover the Death of a Tenant for
Life
Article 12 Other Actions and Proceedings Between Co-Owners or
Owners of Successive Interests
Article 13 Action to Foreclose a Mortgage
Article 14 Foreclosure of Mortgage by Advertisement
Article 15 Action to Compel the Determination of a Claim to
Real Property
Article 16 Judicial Authorization of Sale, Lease, Mortgage,
Acquisition, Exchange or Voluntary Partition
Article 17 Special Proceeding for Disposition of Real Property
of Infant, Incompetent or Conservatee
Article 18 Special Proceeding for Release of Claim Against
State of Infant or Incompetent for Appropriation of
Real Property
Article 19 Discharge or Extinguishment of Encumbrances, Claims
and Interests
Article 19A Special Proceeding to Convey Title to Abandoned
Dwelling to City, Town or Village
Article 20 Enforcement of Covenants and Easements; Recovery of
Damages for Breach of Covenant or Injury to Easement
Article 21 Effective Date; Laws Repealed
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ARTICLE 1
SHORT TITLE; DEFINITIONS; JURISDICTION OF CERTAIN ACTIONS;
CONSTRUCTION OF ACT
Section 101. Short title.
111. Definitions.
121. Jurisdiction of certain actions relating
to real property situate without the state.
131. Construction of act of reconsolidation.
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Sec. 101. SHORT TITLE.
This chapter shall be known as the real property actions and
proceedings law and may be cited as "RPAPL".
Sec. 111. DEFINITIONS.
1. As used in section 1641 of this chapter and in sections 1901
and 1911 of this chapter, the terms "real property" and
"lands" are co-extensive in meaning with lands, tenements
and hereditaments.
2. As used in section 1921, the term "real property" includes
lands, tenements and hereditaments and chattels real, except
a lease for a term not exceeding three years.
3. As used in this chapter the term "incompetent" or
"incompetent person" means a person incompetent to manage
his affairs of whose property a committee has been appointed
pursuant to section 78.03 or a person of whose property a
committee has been appointed pursuant to section 78.07 of
the mental hygiene law.
4. As used in this chapter the term "infant" or "minor" means a
person who has not attained the age of eighteen years.
5. As used in this chapter, the term "conservatee" means a
person under substantial impairment within the meaning of
the conservatorship provisions of article seventy-seven of
the mental hygiene law for whom a conservator has been
appointed.
Sec. 121. JURISDICTION OF CERTAIN ACTIONS RELATING TO REAL
PROPERTY SITUATE WITHOUT THE STATE.
An action may be maintained in the courts of this state to
recover damages for injuries to real estate without the state, or
for breach of contracts or of covenants relating thereto,
whenever such an action could be maintained in relation to
personal property without the state. The action must be tried in
the county in which the parties or some one thereof resides, or
if no party resides within the state, in any county.
Sec. 131. CONSTRUCTION OF ACT OF RECONSOLIDATION.
1. This chapter shall be construed as a continuation and
reenactment of the provisions of the real property law
repealed by article 21 hereof as such provisions existed on
December 31, 1961.
2. The repeal by this chapter of provisions of the real
property law specified in article 21 hereof and the
enactment of this chapter shall not affect any action or
proceeding pending under any such provision at the time this
chapter shall take effect.
3. Any act of the legislature of the year 1962 or 1963 which in
form amends or repeals or purports to amend or repeal any
provision or provisions of the real property law repealed by
article 21 of this chapter shall be legally effective
notwithstanding the repeal of such provision or provisions
and shall be construed as an amendment or repeal, as the
case may be, of the corresponding provision or provisions of
this chapter, and such corresponding provisions shall be
construed to be amended, modified, changed or repealed as
though they had been expressly and in terms so amended or
repealed.
4. Reference by any law, general or special, in force on
December 31, 1961, or in any act of the legislature of the
year 1962 or 1963, to a provision of the real property law
repealed by article 21 of this chapter as in force
immediately before the time this chapter shall take effect
shall be construed to refer to the corresponding provision
of this chapter.
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ARTICLE 2
GENERAL PROVISIONS GOVERNING REAL PROPERTY ACTIONS
Section 201. State or industrial commissioner as defendant
in certain real property actions.
202. Pleading interest of the state.
202a. Pleading interest of a city.
203. Judgment in action adversely affecting the
title, interest or claim of the state
based upon tax deed.
211. Prevention of waste or damage during
pendency.
221. Compelling delivery of possession of real
property.
231. Sale; notice of; when and how conducted.
232. Purchases by certain officers prohibited;
penalty.
241. Persons bound by judgment in certain actions.
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Sec. 201. STATE TAX COMMISSION, STATE OR INDUSTRIAL COMMISSIONER
AS DEFENDANT IN CERTAIN REAL PROPERTY ACTIONS.
In any action affecting real property upon which the state tax
commission has a lien under the tax law or under a law enacted
pursuant to the authority of the tax law or article two-E of the
general city law, whether or not such lien exists by reason of
the filing or docketing of a warrant under such laws, the state
tax commission may be made a party defendant in the same manner
as a private person. In any action affecting real property upon
which the state has a lien under sections two hundred forty-six-a
and two hundred forty-six-b of the lien law, the state may be
made a party defendant in the same manner as a private person. In
any action affecting real property upon which a lien exists by
reason of the docketing of a warrant pursuant to the unemployment
insurance law, the industrial commissioner may be made a party
defendant in the same manner as a private person.
Sec. 202. PLEADING INTEREST OF THE STATE.
Where the state or any department, bureau, board, commission,
council, officer, agency or instrumentality of the state is
defendant in an action affecting real property, the complaint
shall set forth:
1. Detailed facts showing the particular nature of the interest
in or lien on the real property and the reason for making
the state a party defendant.
2. If the lien exists by virtue of a judgment, other than a
warrant the name of the court, date recorded, clerk's office
in which filed, and names of the parties against whom and in
whose favor recorded. In the case of a warrant, the date
filed or docketed, clerk's office in which filed or
docketed, and names of the parties against whom and in whose
favor issued.
3. If the lien exists by virtue of a provision of law other
than a judgment, the provision of law under which said lien
is created.
4. If the lien is one under articles ten, ten-a, ten-b, ten-c
or twenty-six of the tax law, whether or not such lien
exists by reason of the filing or docketing of a warrant
under such law, the name of each decedent against whose
estate there is an unpaid transfer or estate tax, the date
of death, place of residence at the time of death, heirs at
law and next of kin, whether the decedent died testate or
intestate, whether his estate has been administered, and if
so where.
5. If the lien is one under articles nine, nine-a, nine-b, nine-
c or twenty-seven of the tax law, whether or not such lien
exists by reason of the filing or docketing of a warrant
under such law, the name of the corporation, association,
joint-stock company, unincorporated company, person, or
partnership against whose property there is an unpaid
corporation, license, or franchise tax or penalty. 6. If the
lien is one under article twenty-six-a of the tax law,
whether or not such lien exists by reason of the filing or
docketing of a warrant under such law, the names of the
donees or transferees against whose property there is an
unpaid gift tax.
Sec. 202a PLEADING INTEREST OF A CITY.
Where a city or any department, bureau, board, commission,
officer, agency or instrumentality thereof is a defendant in an
action affecting real property, the complaint shall set forth:
1. Detailed facts showing the particular nature of the interest
in or lien on the real property and the reason for making
such city a party-defendant.
2. If the lien exists by virtue of a judgment, the name of the
court, date recorded, clerk's office in which filed, the
names of the parties against whom and in whose favor such
judgment was recovered and a brief description of the
grounds for or the nature of such judgment.
3. If the lien exists by virtue of a provision of law other
than a judgment, the provision of law under which said lien
is created.
Sec. 203. JUDGMENT IN ACTION ADVERSELY AFFECTING THE TITLE,
INTEREST OR CLAIM OF THE STATE BASED UPON TAX DEED.
In any action affecting the title, or the possession, enjoyment
or use of, real property in which one of the parties is the
state, any judgment that may adversely affect the title, interest
or claim of the state based upon a tax deed shall provide in
effect as follows:
1. That the state shall have a lien upon such real property or
part thereof described in such tax deed, prior and superior
to all other liens, (a) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was sold or liable to be sold in the first instance
and for which such tax deed was issued, together with fees,
charges and interest; (b) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was subsequently sold or liable to be sold,
together with fees, charges and interest; (c) for the amount
of all taxes, fees and charges admitted or paid by the state
upon such real property to the date of the entry of such
judgment, together with interest thereon from the date of
such admission or payment. In the determination of the
amount of such lien, establishment of payments of taxes on
said real property by the adjudged or admitted owner of the
property during any of the same years in which payments were
also made by the state shall reduce the lien of the state by
the larger of the two tax payments for each of the years
affected by duplicate payments, and in the event that wholly
identical areas are not affected by the duplicate payments
the court shall have power to apportion and adjust the
amount of the lien as equity may require.
2. That the state may foreclose such lien as a mortgage on real
property is foreclosed, provided such lien remains unpaid
after the expiration of one year from the entry of such
judgment.
The remedy provided by this section for recovery of tax payments
shall be in addition to any other remedy now or hereafter
available in law or in equity.
Sec. 211. PREVENTION OF WASTE OR DAMAGE DURING PENDENCY.
If, during the pendency of an action to recover a judgment
affecting the title to, or the possession, use or enjoyment of,
real property, a party commits waste upon, or does any other
damage to, the property in controversy, the court may grant,
without notice or security, an order restraining him from the
commission of any further waste upon or damage to the property.
Disobedience to such an order may be punished as a contempt of
the court. This section does not affect the right to a permanent
or temporary injunction in such an action.
Sec. 221. COMPELLING DELIVERY OF POSSESSION OF REAL PROPERTY.
Where a judgment affecting the title to, or the possession,
enjoyment or use of, real property allots to any person a
distinct parcel of real property, or contains a direction for the
sale of real property, or confirms such an allotment or sale, it
also may direct the delivery of the possession of the property to
the person entitled thereto. If a party, or his representative or
successor, who is bound by the judgment, withholds possession
from the person thus declared to be entitled thereto, the court,
by order, in its discretion, besides punishing the disobedience
as a contempt, may require the sheriff to put that person into
possession. Such an order shall be executed as if it were an
execution for the delivery of the possession of the property.
Sec. 231. SALE; NOTICE OF; WHEN AND HOW CONDUCTED.
1. A sale of real property made in pursuance of a judgment
affecting the title to, or the possession, enjoyment or use
of, real property, shall be at public auction to the highest
bidder.
2. (a) Notice of such sale shall be given by the officer
making it by publishing a notice of the time and place
of the sale, containing a description of the property
to be sold, in a newspaper published in the county in
which the property is located, or, if there is none, in
a newspaper published in an adjoining county, unless
the property is situated wholly or partly in a city, or
in an incorporated village in which a daily, semi-
weekly or tri-weekly newspaper is published, and, in
that case, by publishing notice of the sale in such a
daily, semi-weekly or tri-weekly paper, except that
where such real property is located in a county within
the city of New York such publication shall be in a
daily newspaper published within such county, or in a
weekly paper published in a city or in such
incorporated village. If the property be situated in a
city, or a village in which no newspaper is published
daily, semi-weekly or tri-weekly, and there be an
adjoining city or village in the same or another
county, in which a newspaper is published, daily, semi-
weekly or tri-weekly, such notice may be published in
such daily, semi-weekly or tri-weekly newspaper of the
latter city or village or in a weekly newspaper of such
city. In each case, publication may be either once in
each week for four successive weeks or at least twice
in each week for three successive weeks preceding the
original date fixed for the sale. If the publication is
for three weeks, such sale shall take place on any day
on or after the twenty-first day and on or before the
twenty-eighth day after the day of the first
publication; and if the publication is for four weeks
such sale shall take place on any day on or after the
twenty-eighth day and on or before the thirty-fifth day
after the day of the first publication. Any period of
seven successive days shall constitute a week under
this section.
(b) Where the property is situated wholly outside a
city or an incorporated village referred to in
subparagraph (a) of this subdivision, notice of such
sale shall also be given by posting a copy of the
notice of sale at least twenty-eight days preceding the
original date fixed for the sale in three public places
in the town in which the property is located, and, if
the sale is to be held in another town or in a city, in
three public places therein.
3. If the officer appointed to make such sale does not appear
at the time and place where such sale has been advertised to
take place, the attorney for the plaintiff may postpone or
adjourn such sale not to exceed four weeks, during which
time such attorney may make application to the court to have
another person appointed to make such sale. Notice of
postponement of the sale shall be posted at least three days
prior to the postponed date in the same places as the
original notice of sale when posting of the notice of sale
is required, and shall be published once at least three days
prior to the postponed date in the newspaper in which the
notice of sale was originally published.
4. The terms of the sale shall be made known at the sale, and
if the property or any part thereof is to be sold subject to
the right of dower, charge or lien, that fact shall be
declared at the time of the sale.
5. If the property consists of two or more distinct buildings,
farms or lots, they shall be sold separately, unless
otherwise ordered by the court; but where two or more
buildings are situated in the same city lot, they shall be
sold together.
6. At any time within one year after the sale, but not
thereafter, the court, upon such terms as may be just, may
set the sale aside for failure to comply with the provisions
of this section as to the notice, time or manner of such
sale if a substantial right of a party was prejudiced by the
defect.
Sec. 232. PURCHASES BY CERTAIN OFFICERS PROHIBITED; PENALTY.
No officer making a sale as prescribed in section 231, or
guardian of an infant party, or any person for his benefit,
directly or indirectly, shall purchase or be interested in the
purchase of any of the property sold; except that a guardian,
where he is lawfully authorized to do so, may purchase for the
benefit or in behalf of his ward. The violation of this section
is a misdemeanor; and a purchase made contrary to this section is
void.
Sec. 241. PERSONS BOUND BY JUDGMENT IN CERTAIN ACTIONS.
In an action brought to recover a judgment affecting the title
to, or the possession, use or enjoyment of, real property, all
the proceedings and the judgment shall bind, in addition to the
persons who are bound by the filing of a notice of pendency of
the action pursuant to law, all persons born between the filing
of the notice of pendency and the entry of judgment who would
have been bound by such proceedings if born after such judgment.
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ARTICLE 3
PROVISIONS RELATING TO EVIDENCE
Section 301. Conveyance and record as evidence.
311. Presumption of possession from legal title.
321. Proof of ownership of unoccupied lands and
timber thereon.
331. Proof of lost execution or writ after
sheriff's sale of real property.
341. Recitals as to heirships in conveyances.
342. Recitals in judgments affecting title to real
property as evidence.
351. Evidence as to common lands in the city of
New York.
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Sec. 301. CONVEYANCE AND RECORD AS EVIDENCE.
1. The certificate of the acknowledgment or of the proof of a
conveyance, or the record, or the transcript of the record,
of such a conveyance, is not conclusive, and it may be
rebutted, and the effect thereof may be contested, by a
party affected thereby.
2. If it appears that the acknowledgment or proof was taken
upon the oath of an interested or incompetent witness, the
conveyance, or the record or transcript of the record
thereof, shall not be received in evidence until its
execution is established by other competent proof, except in
a case where the title to the land conveyed or affected by
such conveyance or instrument has passed to a subsequent
purchaser for a valuable consideration.
Sec. 311. PRESUMPTION OF POSSESSION FROM LEGAL TITLE.
In an action to recover real property or the possession thereof,
the person who establishes a legal title to the premises is
presumed to have been possessed thereof within the time required
by law; and the occupation of the premises by another person is
deemed to have been under and in subordination to the legal title
unless the premises have been held and possessed adversely to the
legal title for ten years before the commencement of the action.
Sec. 321. PROOF OF OWNERSHIP OF UNOCCUPIED LANDS AND TIMBER
THEREON.
In all actions to recover the possession of, or otherwise to
determine the title to, or for trespass upon or injury to,
unoccupied lands, timber, trees, or underwood thereon, any party
seeking such recovery or determination may show an unbroken chain
of title for twenty years, or conveyance of the land to himself
more than twenty years next preceding the commencement of the
action or the assertion of the defense or counterclaim except in
actions for trespass, and in actions for trespass for twenty
years next preceding the commission of the trespass or injury,
and such proof shall be presumptive evidence of ownership at the
times respectively of the commencement of such action or
assertion of the defense or counterclaim or commission of such
trespass or injury. Such presumption may be rebutted by any other
or opposing party by showing ownership of said lands, at the
times respectively of the commencement of the action or the
commission of the trespass or injury, in some person other than
the party claiming ownership by virtue of such presumption. In
any such action wherein the state, or any county or any state
officer, board or commission shall be a party, evidence as
aforesaid shall not be deemed to create any presumption of
ownership as against said designated parties.
Sec. 331. PROOF OF LOST EXECUTION OR WRIT AFTER SHERIFF'S SALE OF
REAL PROPERTY.
Whenever, upon the trial of an action, it shall appear that at
least ten years theretofore real property has been sold by a
sheriff for enforcement of the valid lien thereon of a duly
docketed judgment, and that a certificate of the sale has been
duly made by the sheriff and filed, and that a conveyance in
completion of the purchase has been executed and recorded, but
that the execution or writ by virtue of which the sale has so
been made cannot be found in the office of the clerk with whom
the same should have been filed, then and in such case the
recital of or reference to such execution or writ contained in
the said certificate, or in the said conveyance, or in the record
thereof, shall be prima facie evidence of the said execution or
writ and of the issuance of the same as against any party whose
claim of title is not shown to have been accompanied or supported
by peaceable possession of the premises in controversy for at
least three years immediately preceding the commencement of the
action.
Sec. 341. RECITALS AS TO HEIRSHIPS IN CONVEYANCES.
Hereafter, in any special proceeding or action in any of the
courts of this state, any deed, mortgage, lease, release, power
of attorney or other instrument more than ten years old, executed
for the purpose of transferring the title to or interest in
lands, tenements or hereditaments situated within this state,
which contains recitals that the grantors, grantees, or either,
or both, are the heirs at law of a prior owner of the title or
interest described in said instrument, or a survivor of a tenancy
by the entirety or joint tenancy, shall be presumptive evidence
of said heirship, or of such survivorship, as therein recited, if
such instrument be duly acknowledged or witnessed and proved in
any manner required or permitted at the date of the execution
thereof, and be duly recorded in any county where any part of the
lands described therein shall be located, or duly recorded in the
office of the secretary of state of the state of New York.
Sec. 342. RECITALS IN JUDGMENTS AFFECTING TITLE TO REAL PROPERTY
AS EVIDENCE.
In any action or special proceeding in any of the courts of this
state, a judgment, decree or order of any court of record, or
made by a judge of any court of record in this state, in any
action affecting the title of real property, which contains
recitals that any acts were done or proceedings had which were
necessary to give to such court or judge jurisdiction or power to
grant such judgment, decree or order, shall be presumptive
evidence that such acts were duly performed or proceedings duly
had, if such judgment, decree or order shall have been duly
entered or filed in the office of the clerk of the county in
which the action or special proceeding was pending wherein such
judgment, decree or order was granted.
Sec. 351. EVIDENCE AS TO COMMON LANDS IN THE CITY OF NEW YORK.
In any action or special proceeding involving a question as to
the situs of any lot of the common lands, so-called, in the city
of New York, the court may, upon the offer of any party, receive
in evidence any evidence which was received in the action
heretofore prosecuted in the superior court of the city of New
York, by Russell D. Miner, and continued by the personal
representatives of the same Russell D. Miner, deceased, against
the city of New York, or in the action in such court between
certain heirs at law of the same Russell D. Miner, deceased, and
Jacob Scholle and others, and also the deposition of Isaac T.
Ludlam, deceased, verified before E. Henry Lacombe, as referee,
upon the fourteenth day of November, eighteen hundred seventy-
eight, in an action in such court by Hester Sherman and others,
against Thomas Kane and others; provided that the testimony of a
witness shall not be admissible, under the provisions of this
section until the court is satisfied that such witness has
heretofore died; and provided further, that no provision of this
section shall give to any documentary evidence introduced in
connection with any former testimony any greater or different
effect than may be due to it by reason of the testimony relative
thereto. Such evidence may be introduced in any mode established
by the practice of the courts for the introduction of testimony
given upon a former trial, by a witness who has since died, or by
reading from the printed cases on appeal, heretofore filed in the
office of the clerk of the superior court of the city of New
York.
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ARTICLE 4
VALUING INTERESTS IN REAL PROPERTY
Section 401. When interests are valued under this article.
402. Interest rate.
403. Mortality and other tables.
404. Evidence as to ancestry, health and habits of
individual.
405. Interest defeasible by remarriage.
406. Computation by superintendent of insurance.
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Sec. 401. WHEN INTERESTS ARE VALUED UNDER THIS ARTICLE.
The following interests shall be valued in the manner provided by
this article:
(a) an interest in real property dependent as to value upon the
duration of one or more lives in being, whether such
interest is present or future; and
(b) a future interest preceded only by one or more interests
described in clause (a); whenever
1. the owner of such interest is entitled to receive a sum
in gross in satisfaction of, or in compensation for
impairment of, his interest in real property which has
been transformed into a fund by judicial action or
proceeding; or
2. ownership of real property is divided into successive
legal interests, including one or more interests
dependent as to value upon the duration of one or more
lives of persons in being, and the fraction of complete
ownership belonging to each partial owner must be
ascertained so as to permit an adjudication of the
fraction of some new capital expenditure required
either for the payment of a mortgage, special
assessment or other lien upon such property, or for the
satisfaction of an obligation imposed by law as an
incident of ownership; or
3. such valuation is necessary for the final determination
of some action or proceeding, other than an action or
proceeding for which the insurance law, the workmen's
compensation law or the tax law prescribes methods of
valuation.
Sec. 402. INTEREST RATE.
In all valuations made under this article, the interest rate of
four per centum, compounded annually, shall be employed for all
purposes.
Sec. 403. MORTALITY AND OTHER TABLES.
In all valuations made under this article where such valuation
depends upon the continuance of, or upon the termination of a
life or lives in being, the table of mortality prescribed by
section four thousand two hundred seventeen of the insurance law
for new, ordinary life policies shall be employed in the manner
required by accepted actuarial practice. If, in any case, such
table fails to provide required data, other tables accepted by
actuarial practice may be employed.
Sec. 404. EVIDENCE AS TO ANCESTRY, HEALTH AND HABITS OF
INDIVIDUAL.
In all valuations made under this article, no significance shall
be given to the ancestry, health or habits of the person whose
life is involved. Each valuation shall be based exclusively on
the actuarial data.
Sec. 405. INTEREST DEFEASIBLE BY REMARRIAGE.
Whenever an interest is defeasible on the remarriage of a person
whose life is involved, this fact of defeasibility may be taken
into account in the valuation of any such interest or of any
interest subject thereto, if justice requires. For this purpose,
the Casualty Actuarial Society's Table on Remarriage or other
tables accepted by actuarial practice shall be employed.
Sec. 406. COMPUTATION BY SUPERINTENDENT OF INSURANCE.
Any court, judge, referee or other judicial or administrative
officer by whom any valuation under this article must be made is
authorized to transmit to the superintendent of insurance such
statement of facts as is necessary to permit the required
computation, and such superintendent shall thereupon make the
computation and, without charge, certify the same to the court or
other officer submitting such statement. Any such certificate
shall be conclusive evidence that the method of computation
adopted therein is correct.
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ARTICLE 5
ADVERSE POSSESSION
Section 501. Action after entry.
511. Adverse possession under written instrument
or judgment.
512. Essentials of adverse possession under
written instrument or judgment.
521. Adverse possession under claim of title not
written.
522. Essentials of adverse possession under claim
of title not written.
531. Adverse possession, how affected by relation
of landlord and tenant.
541. Adverse possession, how affected by relation
of tenants in common.
551. Right of person to possession not affected by
descent cast.
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Sec. 501. ACTION AFTER ENTRY.
An entry upon real property is not sufficient or valid as a claim
unless an action is commenced thereupon within one year after the
making thereof and within ten years after the time when the right
to make it descended or accrued.
Sec. 511. ADVERSE POSSESSION UNDER WRITTEN INSTRUMENT OR
JUDGMENT.
Where the occupant or those under whom he claims entered into the
possession of the premises under claim of title, exclusive of any
other right, founding the claim upon a written instrument, as
being a conveyance of the premises in question, or upon the
decree or judgment of a competent court, and there has been a
continued occupation and possession of the premises included in
the instrument, decree or judgment, or of some part thereof, for
ten years, under the same claim, the premises so included are
deemed to have been held adversely; except that when they consist
of a tract divided into lots, the possession of one lot is not
deemed a possession of any other lot.
Sec. 512. ESSENTIALS OF ADVERSE POSSESSION UNDER WRITTEN
INSTRUMENT OR JUDGMENT.
For the purpose of constituting an adverse possession by a person
claiming a title founded upon a written instrument or a judgment
or decree, land is deemed to have been possessed and occupied in
either of the following cases:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial inclosure.
3. Where, although not inclosed, it has been used for the
supply of fuel or of fencing timber, either for the purposes
of husbandry or for the ordinary use of the occupant.
Where a known farm or a single lot has been partly improved, the
portion of the farm or lot that has been left not cleared or not
inclosed, according to the usual course and custom of the
adjoining country, is deemed to have been occupied for the same
length of time as the part improved and cultivated.
Sec. 521. ADVERSE POSSESSION UNDER CLAIM OF TITLE NOT WRITTEN.
Where there has been an actual continued occupation of premises
under a claim of title, exclusive of any other right, but not
founded upon a written instrument or a judgment or decree, the
premises so actually occupied, and no others, are deemed to have
been held adversely.
Sec. 522. ESSENTIALS OF ADVERSE POSSESSION UNDER CLAIM OF TITLE
NOT WRITTEN.
For the purpose of constituting an adverse possession by a person
claiming title not founded upon a written instrument or a
judgment or decree, land is deemed to have been possessed and
occupied in either of the following cases, and no others:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial inclosure.
Sec. 531. ADVERSE POSSESSION, HOW AFFECTED BY RELATION OF
LANDLORD AND TENANT.
Where the relation of landlord and tenant has existed between any
persons the possession of the tenant is deemed the possession of
the landlord until the expiration of ten years after the
termination of the tenancy; or, where there has been no written
lease, until the expiration of ten years after the last payment
of rent; notwithstanding that the tenant has acquired another
title or has claimed to hold adversely to his landlord. But this
presumption shall cease after the periods prescribed in this
section and such tenant may then commence to hold adversely to
his landlord.
Sec. 541. ADVERSE POSSESSION, HOW AFFECTED BY RELATION OF TENANTS
IN COMMON.
Where the relation of tenants in common has existed between any
persons, the occupancy of one tenant, personally or by his
servant or by his tenant, is deemed to have been the possession
of the other, notwithstanding that the tenant so occupying the
premises has acquired another title or has claimed to hold
adversely to the other. But this presumption shall cease after
the expiration of ten years of continuous exclusive occupancy by
such tenant, personally or by his servant or by his tenant, or
immediately upon an ouster by one tenant of the other and such
occupying tenant may then commence to hold adversely to his
cotenant.
Sec. 551. RIGHT OF PERSON TO POSSESSION NOT AFFECTED BY DESCENT
CAST.
The right of a person to the possession of real property is not
impaired or affected by a descent being cast in consequence of
the death of a person in possession of the property.
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ARTICLE 6
ACTION TO RECOVER REAL PROPERTY
Section 601. Damages for withholding real property
obtainable in action to recover possession;
set-off by defendant.
611. Where action cannot be maintained:
dower; property not exceeding six inches in
width; by mortgagee.
612. Where action cannot be maintained;
action based on reverter or breach of
condition subsequent.
621. Separate action by joint tenant or
tenant in common.
623. Action by grantee of lands held
adversely.
625. Action by reversioner or remainderman
after tenant's default.
631. Defendants.
633. Action against co-tenant; ouster to be
proved.
635. Action against occupants of apartments.
637. Action against one defendant subject to
rights of others.
641. Complaint.
651. Expiration of plaintiff's title before
trial.
653. Judgment to state plaintiff's estate.
661. Liability of purchaser pending an
action.
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Sec. 601. DAMAGES FOR WITHHOLDING REAL PROPERTY OBTAINABLE IN
ACTION TO RECOVER POSSESSION; SET-OFF BY DEFENDANT.
In an action to recover the possession of real property, the
plaintiff may recover damages for withholding the property,
including the rents and profits or the value of the use and
occupation of the property for a term not exceeding six years;
but the damages shall not include the value of the use of any
improvements made by the defendant or those under whom he claims.
Where permanent improvements have been made in good faith by the
defendant or those under whom he claims, while holding, under
color of title, adversely to the plaintiff, the value thereof
must be allowed to the defendant in reduction of the damages of
the plaintiff, but not beyond the amount of those damages.
Sec. 611. WHERE ACTION CANNOT BE MAINTAINED: DOWER; PROPERTY
NOT EXCEEDING SIX INCHES IN WIDTH; BY MORTGAGEE.
The action cannot be maintained:
1. Where an action for dower may be maintained.
2. Where the real property consists of a strip of land not
exceeding six inches in width upon which there stands the
exterior wall of a building erected partly upon said strip
and partly upon the adjoining lot, and a building has been
erected upon land of the plaintiff abutting on the said
wall, unless said action be commenced within one year after
the completion of the erection of such wall. But an action
may be maintained if commenced within the further period of
one year, for the recovery of damages by reason of the
erection of such wall, and upon the satisfaction of the
judgment for such damages the title of the plaintiff to such
strip of land shall thereby be transferred to and vest in
the defendant. If an action for the recovery of real
property or damages is not brought within the period hereby
limited therefor, the person in possession of such lands
shall be deemed to have an easement in said strip of land so
long as the said wall partly erected thereon shall stand,
and no longer, and in case of the destruction of such wall
the owner of such strip shall have the same right to take or
recover the possession thereof as if such wall had never
existed.
3. By a mortgagee, or his assignee, or other representative.
Sec. 612. WHERE ACTION CANNOT BE MAINTAINED; ACTION BASED ON
REVERTER OR BREACH OF CONDITION SUBSEQUENT.
1. Except as otherwise provided in this section, an action to
recover the possession of real property cannot be maintained
where it is founded upon a claim of reverter of an estate in
fee conveyed upon special limitation or founded upon a claim
of breach of a condition subsequent, other than a condition
of a lease for a term of years, unless (a) within ten years
after the occurrence of the reverter or the first occurrence
of the breach, the plaintiff, or any predecessor in interest
then entitled to possession or to exercise the power of
termination, shall have served upon the person or persons
against whom the action might then have been commenced a
written demand that possession be delivered, stating the
ground thereof, and the action is commenced within one year
thereafter or (b), if no such demand is served, the action
is commenced within such ten years.
2. Where the reverter or breach occurred before September 1,
1963, an action may be maintained if demand is made as
provided in this section before the expiration of ten years
computed from the occurrence of the reverter or the first
occurrence of the breach, or on or before September 1, 1965,
whichever is later, and the action is commenced within one
year thereafter or if, without previous demand as provided
in this section, the action is commenced before the
expiration of ten years computed from the occurrence of the
reverter or the first occurrence of the breach, or on or
before September 1, 1965, whichever is later.
3. The demand shall be served either personally or by mailing
the same by certified mail addressed to the person or
persons against whom the action might then have been
commenced, at his or their last known address or addresses.
4. The demand may be made on behalf of an infant by his parent
or guardian or by the person with whom he resides, may be
made on behalf of an incompetent by the committee of his
person or property, and may be made on behalf of a
conservatee by the conservator of his property. If the
person entitled to maintain the action shall have died, the
demand may be made either by the persons succeeding to the
right of the decedent, or one of them, or on their behalf by
the personal representative of the decedent.
5. The demand shall become ineffective unless action to recover
possession in accordance therewith is commenced within one
year from the date of service thereof. If no action is
commenced, or no such demand is served within the time
specified in subdivisions 1 or 2, or if the demand served
becomes ineffective, it shall be conclusively presumed that
the possibility of reverter by reason of which the estate is
claimed to have reverted, or the power of termination for
breach of the condition which is claimed to have been
broken, was extinguished at or before the date when the
reverter would have occurred or a right of entry would have
accrued by reason of such possibility of reverter or breach
of such condition.
6. The operation of this section is not affected by any
disability, or by the fact that the person against whom the
action might have been brought within the period herein
provided was during that time a non-resident or absent from
the state, and is not affected by any lack of knowledge on
the part of any person that the reverter or breach has
occurred, unless it is established that the facts upon which
the reverter occurred, or the facts constituting the breach,
were concealed from the plaintiff or his predecessor in
interest by actual fraud. If such fraud be established, the
time provided in subdivision 1 or 2 shall commence to run
when the facts are discovered by a person entitled to serve
the demand as provided in this section.
7. This section does not limit any other statute or rule of law
or equity by which a possibility of reverter or right of
entry is or may be extinguished or rendered unenforceable,
or by which an action to recover possession of the property
may be extinguished or barred.
Sec. 621. SEPARATE ACTION BY JOINT TENANT OR TENANT IN COMMON.
Where two or more persons are entitled to the possession of real
property as joint tenants or tenants in common, one or more of
them may maintain the action to recover his or their undivided
shares in the property in any case where such an action might be
maintained by all.
Sec. 623. ACTION BY GRANTEE OF LANDS HELD ADVERSELY.
The action shall be maintained by a grantee, his executors,
administrators or assigns in his own name, although at the time
of the conveyance, such real property was in the actual
possession of a person claiming under a title adverse to that of
the grantor.
Sec. 625. ACTION BY REVERSIONER OR REMAINDERMAN AFTER TENANT'S
DEFAULT.
Where a tenant for life or for a term of years suffers judgment
to be taken against him, by consent or by default, in an action
to recover real property, the heir or person owning the reversion
or remainder, may maintain an action to recover the property,
after the determination of the particular estate.
Sec. 631. DEFENDANTS.
Where the complaint demands judgment for the immediate possession
of the property, if the property is actually occupied, the
occupant shall be made defendant in the action. If it is not so
occupied, the action shall be brought against some person
exercising acts of ownership thereupon, or claiming title thereto
or an interest therein, at the time of the commencement of the
action. Any person claiming title to, or the right to the
possession of, the real property sought to be recovered, as
landlord, remainderman, reversioner, or otherwise adversely to
the plaintiff, may be joined as defendant.
Sec. 633. ACTION AGAINST CO-TENANT; OUSTER TO BE PROVED.
Where the action is brought by a tenant in common or a joint
tenant against his co-tenant, the plaintiff, besides proving his
right, shall also prove that the defendant actually ousted him or
did some other act amounting to a total denial of his right.
Sec. 635. ACTION AGAINST OCCUPANTS OF APARTMENTS.
In a case where two or more defendants occupy different
apartments in a building the plaintiff is entitled to judgment
jointly against all the defendants who are liable to him.
Sec. 637. ACTION AGAINST ONE DEFENDANT SUBJECT TO RIGHTS OF
OTHERS.
Where one or more answering defendants hold under another
defendant, and the plaintiff elects to proceed against the
latter, subject to the rights and interests of the former, if the
plaintiff recovers final judgment against the defendant under
whom they hold, the judgment operates as a transfer to the
plaintiff of that defendant's right, title and interest.
Sec. 641. COMPLAINT.
The complaint shall state the plaintiff's interest in the
property and describe it with reasonable certainty in such manner
that, from the description, possession of the property claimed
may be delivered.
Sec. 651. EXPIRATION OF PLAINTIFF'S TITLE BEFORE TRIAL.
If the right or title of the plaintiff expires after the
commencement of the action but before the trial, and he would
have been entitled to recover but for the expiration, the
verdict, report or decision shall be rendered according to the
fact; and the plaintiff is entitled nevertheless to judgment for
his damages for the withholding of the property to the time when
his right or title so expired.
Sec. 653. JUDGMENT TO STATE PLAINTIFF'S ESTATE.
A verdict, report or decision in favor of the plaintiff and the
judgment rendered thereon, shall specify in writing the estate of
the plaintiff in the property recovered, whether it is in fee, or
for life, or for a term of years stating for whose life it is, or
specifying the duration of the term, if the estate be less than a
fee.
Sec. 661. LIABILITY OF PURCHASER PENDING AN ACTION.
If the defendant aliens the real property in question after the
filing of a notice of pendency of the action, and an execution
against him for the plaintiff's damages is returned wholly or
partly unsatisfied, an action may be maintained by the plaintiff
against any person who has been in possession of the property,
under the defendant's conveyance, to recover the unsatisfied
portion of the damages, for a time not exceeding that during
which he possessed the property.
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ARTICLE 7
SUMMARY PROCEEDING TO RECOVER POSSESSION OF REAL PROPERTY
Section 701. Jurisdiction; courts; venue.
711. Grounds where landlord-tenant
relationship exists.
713. Grounds where no landlord-tenant
relationship exists.
713a. Special proceeding for termination
of adult home and residence for adults
admission agreements.
715. Grounds and procedure where use or
occupancy is illegal.
721. Person who may maintain proceeding.
731. Commencement; notice of petition.
732. Special provisions applicable in non-
payment proceeding if the rules so provide.
733. Time of service; order to show cause.
734. Notice of petition; service on the
Westchester county department of social
services.
735. Manner of service; filing; when service
complete.
741. Contents of petition.
743. Answer.
745. Trial.
747. Judgment.
749. Warrant.
751. Stay upon paying rent or giving
undertaking; discretionary stay outside city
of New York.
753. Stay where tenant holds over in premises
occupied for dwelling purposes in city of New
York.
755. Stay of proceeding or action for rent
upon failure to make repairs.
756. Stay of summary proceedings or actions
for rent under certain conditions.
761. Redemption by lessee.
763. Redemption by creditor of lessee.
765. Effect of redemption upon lease.
767. Order of redemption; liability of
persons redeeming.
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Sec. 701. JURISDICTION; COURTS; VENUE.
1. A special proceeding to recover real property may be
maintained in a county court, the court of a police justice
of the village, a justice court, a court of civil
jurisdiction in a city, or a district court.
2. The place of trial of the special proceeding shall be within
the jurisdictional area of the court in which the real
property or a portion thereof is situated; except that where
the property is located in an incorporated village which
includes parts of two or more towns the proceeding may be
tried by a justice of the peace of any such town who keeps
an office in the village.
Sec. 711. GROUNDS WHERE LANDLORD-TENANT RELATIONSHIP EXISTS.
A tenant shall include an occupant of one or more rooms in a
rooming house or a resident, not including a transient occupant,
of one or more rooms in a hotel who has been in possession for
thirty consecutive days or longer; he shall not be removed from
possession except in a special proceeding. A special proceeding
may be maintained under this article upon the following grounds:
1. The tenant continues in possession of any portion of the
premises after the expiration of his term, without the
permission of the landlord or, in a case where a new lessee
is entitled to possession, without the permission of the new
lessee. Acceptance of rent after commencement of the special
proceeding upon this ground shall not terminate such
proceeding nor effect any award of possession to the
landlord or to the new lessee, as the case may be. A
proceeding seeking to recover possession of real property by
reason of the termination of the term fixed in the lease
pursuant to a provision contained therein giving the
landlord the right to terminate the time fixed for occupancy
under such agreement if he deem the tenant objectionable,
shall not be maintainable unless the landlord shall by
competent evidence establish to the satisfaction of the
court that the tenant is objectionable.
2. The tenant has defaulted in the payment of rent, pursuant to
the agreement under which the premises are held, and a
demand of the rent has been made, or at least three days'
notice in writing requiring, in the alternative, the payment
of the rent, or the possession of the premises, has been
served upon him as prescribed in section 735. The landlord
may waive his right to proceed upon this ground only by an
express consent in writing to permit the tenant to continue
in possession, which consent shall be revocable at will, in
which event the landlord shall be deemed to have waived his
right to summary dispossess for nonpayment of rent accruing
during the time said consent remains unrevoked. Any person
succeeding to the landlord's interest in the premises may
proceed under this subdivision for rent due his predecessor
in interest if he has a right thereto. Where a tenant dies
during the term of the lease and rent due has not been paid
and no representative or person has taken possession of the
premises and no administrator or executor has been
appointed, the proceeding may be commenced after three
months from the date of death of the tenant by joining the
surviving spouse or if there is none, then one of the
surviving issue or if there is none, then any one of the
distributees.
3. The tenant, in a city defaults in the payment, for sixty
days after the same shall be payable, of any taxes or
assessments levied on the premises which he has agreed in
writing to pay pursuant to the agreement under which the
premises are held, and a demand for payment has been made,
or at least three days' notice in writing, requiring in the
alternative the payment thereof and of any interest and
penalty thereon, or the possession of the premises, has been
served upon him, as prescribed in section 735. An acceptance
of any rent shall not be construed as a waiver of the
agreement to pay taxes or assessments.
4. The tenant, under a lease for a term of three years or less,
has during the term taken the benefit of an insolvency
statute or has been adjudicated a bankrupt.
5. The premises, or any part thereof, are used or occupied as a
bawdy-house, or house or place of assignation for lewd
persons, or for purposes of prostitution, or for any illegal
trade or manufacture, or other illegal business.
6. The tenant, in a city having a population of one million or
more, removes the batteries or otherwise disconnects or
makes inoperable an installed smoke or fire detector which
the tenant has not requested be moved from its location so
as not to interfere with the reasonable use of kitchen
facilities provided that the court, upon complaint thereof,
has previously issued an order of violation of the
provisions heretofore stated and, subsequent to the
thirtieth day after service of such order upon the tenant,
an official inspection report by the appropriate department
of housing preservation and development is presented, in
writing, indicating non-compliance herewith; provided
further, that the tenant shall have the additional ten day
period to cure such violation in accordance with the
provisions of subdivision four of section seven hundred
fifty-three of this chapter.
Sec. 713. GROUNDS WHERE NO LANDLORD-TENANT RELATIONSHIP EXISTS.
A special proceeding may be maintained under this article after a
ten-day notice to quit has been served upon the respondent in the
manner prescribed in section 735, upon the following grounds:
1. The property has been sold by virtue of an execution against
him or a person under whom he claims and a title under the
sale has been perfected.
2. He occupies or holds the property under an agreement with
the owner to occupy and cultivate it upon shares or for a
share of the crops and the time fixed in the agreement for
his occupancy has expired.
3. He or the person to whom he has succeeded has intruded into
or squatted upon the property without the permission of the
person entitled to possession and the occupancy has
continued without permission or permission has been revoked
and notice of the revocation given to the person to be
removed.
4. The property has been sold for unpaid taxes and a tax deed
has been executed and delivered to the purchaser and he or
any subsequent grantee, distributee or devisee claiming
title through such purchaser has complied with all
provisions of law precedent to the right to possession and
the time of redemption by the former owner or occupant has
expired.
5. The property has been sold in foreclosure and either the
deed delivered pursuant to such sale, or a copy of such
deed, certified as provided in the civil practice law and
rules, has been exhibited to him.
6. He is the tenant of a life tenant of the property, holding
over and continuing in possession of the property after the
termination of the estate of such life tenant without the
permission of the person entitled to possession of the
property upon termination of the life estate.
7. He is a licensee of the person entitled to possession of the
property at the time of the license, and (a) his license has
expired, or (b) his license has been revoked by the
licensor, or (c) the licensor is no longer entitled to
possession of the property; provided, however, that a
mortgagee or vendee in possession shall not be deemed to be
a licensee within the meaning of this subdivision.
8. The owner of real property, being in possession of all or a
part thereof, and having voluntarily conveyed title to the
same to a purchaser for value, remains in possession without
permission of the purchaser.
9. A vendee under a contract of sale, the performance of which
is to be completed within ninety days after its execution,
being in possession of all or a part thereof, and having
defaulted in the performance of the terms of the contract of
sale, remains in possession without permission of the
vendor.
10. The person in possession has entered the property or remains
in possession by force or unlawful means and he or his
predecessor in interest was not in quiet possession for
three years before the time of the forcible or unlawful
entry or detainer and the petitioner was peaceably in actual
possession at the time of the forcible or unlawful entry or
in constructive possession at the time of the forcible or
unlawful detainer; no notice to quit shall be required in
order to maintain a proceeding under this subdivision.
11. The person in possession entered into possession as an
incident to employment by petitioner, and the time agreed
upon for such possession has expired or, if no such time was
agreed upon, the employment has been terminated; no notice
to quit shall be required in order to maintain the
proceeding under this subdivision.
Sec. 713-a.SPECIAL PROCEEDING FOR TERMINATION OF ADULT HOME AND
RESIDENCE FOR ADULTS ADMISSION AGREEMENTS.
A special proceeding to terminate the admission agreement of a
resident of an adult home or residence for adults and discharge a
resident therefrom may be maintained in a court of competent
jurisdiction pursuant to the provisions of section four hundred
sixty-one-h of the social services law and nothing contained in
such section shall be construed to create a relationship of
landlord and tenant between the operator of an adult home or
residence for adults and a resident thereof.
Sec. 715. GROUNDS AND PROCEDURE WHERE USE OR OCCUPANCY IS
ILLEGAL.
1. An owner or tenant, including a tenant of one or more rooms
of an apartment house, tenement house or multiple dwelling,
of any premises within two hundred feet from other demised
real property used or occupied in whole or in part as a
bawdy-house, or house or place of assignation for lewd
persons, or for purposes of prostitution, or for any illegal
trade, business or manufacture, or any domestic corporation
organized for the suppression of vice, subject to or which
submits to visitation by the state department of social
services and possesses a certificate from such department of
such fact and of conformity with regulations of the
department, or any duly authorized enforcement agency of the
state or of a subdivision thereof, under a duty to enforce
the provisions of the penal law or of any state or local
law, ordinance, code, rule or regulation relating to
buildings, may serve personally upon the owner or landlord
of the premises so used or occupied, or upon his agent, a
written notice requiring the owner or landlord to make an
application for the removal of the person so using or
occupying the same. If the owner or landlord or his agent
does not make such application within five days thereafter;
or, having made it, does not in good faith diligently
prosecute it, the person, corporation or enforcement agency
giving the notice may bring a proceeding under this article
for such removal as though the petitioner were the owner or
landlord of the premises, and shall have precedence over any
similar proceeding thereafter brought by such owner or
landlord or to one theretofore brought by him and not
prosecuted diligently and in good faith. Proof of the ill
repute of the demised premises or of the inmates thereof or
of those resorting thereto shall constitute presumptive
evidence of the unlawful use of the demised premises
required to be stated in the petition for removal. Both the
person in possession of the property and the owner or
landlord shall be made respondents in the proceeding.
2. For purposes of this section, two or more convictions of any
person or persons had, within a period of one year, for any
of the offenses described in section 230.00, 230.05, 230.20,
230.25, 230.30 or 230.40 of the penal law arising out of
conduct engaged in at the same real property consisting of a
dwelling as that term is defined in subdivision four of
section four of the multiple dwelling law shall be
presumptive evidence of conduct constituting use of the
premises for purposes of prostitution.
3. For the purposes of this section, two or more convictions of
any person or persons had, within a period of one year, for
any of the offenses described in section 225.00, 225.05,
225.10, 225.15, 225.20, 225.30, 225.32, 225.35 or 225.40 of
the penal law, arising out of conduct engaged in at the same
premises consisting of a dwelling as that term is defined in
subdivision four of section four of the multiple dwelling
law shall be presumptive evidence of unlawful use of such
premises and of the owner's knowledge of the same.
4. A court granting a petition pursuant to this section may, in
addition to any other order provided by law, make an order
imposing and requiring the payment by the respondent of a
civil penalty not exceeding five thousand dollars to the
municipality in which the subject premises is located and,
the payment of reasonable attorneys fees and the costs of
the proceeding to the petitioner. In any such case multiple
respondents shall be jointly and severally liable for any
payment so ordered and the amounts of such payments shall
constitute a lien upon the subject realty.
5. For the purposes of a proceeding under this section, an
enforcement agency of the state or of a subdivision thereof,
which may commence a proceeding under this section, may
subpoena witnesses, compel their attendance, examine them
under oath before himself or a court and require that any
books, records, documents or papers relevant or material to
the inquiry be turned over to him for inspection,
examination or audit, pursuant to the civil practice law and
rules. If a person subpoenaed to attend upon such inquiry
fails to obey the command of a subpoena without reasonable
cause, or if a person in attendance upon such inquiry shall,
without reasonable cause, refuse to be sworn or to be
examined or to answer a question or to produce a book or
paper, when ordered to do so by the officer conducting such
inquiry, he shall be guilty of a class B misdemeanor.
Sec. 721. PERSON WHO MAY MAINTAIN PROCEEDING. THE PROCEEDING MAY
BE BROUGHT BY:
1. The landlord or lessor.
2. The reversioner or remainderman next entitled to possession
of the property upon the termination of the estate of a life
tenant, where a tenant of such life tenant holds over.
3. The purchaser upon the execution or foreclosure sale, or the
purchaser on a tax sale to whom a deed has been executed and
delivered or any subsequent grantee, distributee or devisee
claiming title through such purchaser.
4. The person forcibly put out or kept out.
5. The person with whom, as owner, the agreement was made, or
the owner of the property occupied under an agreement to
cultivate the property upon shares or for a share of the
crops.
6. The person lawfully entitled to the possession of property
intruded into or squatted upon.
7. The person entitled to possession of the property occupied
by a licensee who may be dispossessed.
8. The person, corporation or law enforcement agency authorized
by this article to proceed to remove persons using or
occupying premises for illegal purposes.
9. The receiver of a landlord, purchaser or other person so
entitled to apply, when authorized by the court.
10. The lessee of the premises, entitled to possession.
11. Not-for-profit corporations, and tenant associations
authorized in writing by the commissioner of the department
of the city of New York charged with enforcement of the
housing maintenance code of such city to manage residential
real property owned by such city.
Sec. 731. COMMENCEMENT; NOTICE OF PETITION.
1. The special proceeding prescribed by this article shall be
commenced by petition and a notice of petition. A notice of
petition may be issued only by an attorney, judge or the
clerk of the court; it may not be issued by a party
prosecuting the proceeding in person.
2. Except as provided in section 732, relating to a proceeding
for non-payment of rent, the notice of petition shall
specify the time and place of the hearing on the petition
and state that if respondent shall fail at such time to
interpose and establish any defense that he may have, he may
be precluded from asserting such defense or the claim on
which it is based in any other proceeding or action.
Sec. 732. SPECIAL PROVISIONS APPLICABLE IN NON-PAYMENT PROCEEDING
IF THE RULES SO PROVIDE.
If the appropriate appellate division shall so provide in the
rules of a particular court, this section shall be applicable in
such court in a proceeding brought on the ground that the
respondent has defaulted in the payment of rent; in such event,
all other provisions of this article shall remain applicable in
such proceeding, except to the extent inconsistent with the
provisions of this section.
1. The notice of petition shall be returnable before the clerk,
and shall be made returnable within five days after its
service.
2. If the respondent answers, the clerk shall fix a date for
trial or hearing not less than three nor more than eight
days after joinder of issue, and shall immediately notify by
mail the parties or their attorneys of such date. If the
determination be for the petitioner, the issuance of a
warrant shall not be stayed for more than five days from
such determination.
3. If the respondent fails to answer within five days from the
date of service, as shown by the affidavit or certificate of
service of the notice of petition and petition, the judge
shall render judgment in favor of the petitioner and may
stay the issuance of the warrant for a period of not to
exceed ten days from the date of service.
4. The notice of petition shall advise the respondent of the
requirements of subdivisions 1, 2 and 3, above.
Sec. 733. TIME OF SERVICE; ORDER TO SHOW CAUSE.
1. Except as provided in section 732, relating to a proceeding
for non-payment of rent, the notice of petition and petition
shall be served at least five and not more than twelve days
before the time at which the petition is noticed to be
heard.
2. The court may grant an order to show cause to be served in
lieu of a notice of petition. If the special proceeding is
based upon the ground specified in subdivision 1 of section
711, and the order to show cause is sought on the day of the
expiration of the lease or the next day thereafter, it may
be served at a time specified therein which shall be at
least two hours before the hour at which the petition is to
be heard.
Sec. 734. NOTICE OF PETITION; SERVICE ON THE WESTCHESTER COUNTY
DEPARTMENT OF SOCIAL SERVICES.
In the county of Westchester, if the local legislative body has,
by local law, opted to require such notice, service of a copy of
the notice of petition and petition in any proceeding commenced
against a residential tenant in accordance with the provisions of
this article shall be served upon the county commissioner of
social services. Such service shall be made by certified mail,
return receipt requested, directed to an address set forth in the
local law, or pursuant to the provisions of the civil practice
law and rules. Such service shall be made at least five days
before the return date set in the notice of petition. Proof of
such service shall be filed with the court. Failure to serve the
commissioner shall not be a jurisdictional defect, and shall not
be a defense to a proceeding brought pursuant to the provisions
of this article.
Sec. 735. MANNER OF SERVICE; FILING; WHEN SERVICE COMPLETE.
1. Service of the notice of petition and petition shall be made
by personally delivering them to the respondent; or by
delivering to and leaving personally with a person of
suitable age and discretion who resides or is employed at
the property sought to be recovered, a copy of the notice of
petition and petition, if upon reasonable application
admittance can be obtained and such person found who will
receive it; or if admittance cannot be obtained and such
person found, by affixing a copy of the notice and petition
upon a conspicuous part of the property sought to be
recovered or placing a copy under the entrance door of such
premises; and in addition, within one day after such
delivering to such suitable person or such affixing or
placement, by mailing to the respondent both by registered
or certified mail and by regular first class mail,
(a) if a natural person, as follows: at the property sought
to be recovered, and if such property is not the place
of residence of such person and if the petitioner shall
have written information of the residence address of
such person, at the last residence address as to which
the petitioner has such information, or if the
petitioner shall have no such information, but shall
have written information of the place of business or
employment of such person, to the last business or
employment address as to which the petitioner has such
information; and
(b) if a corporation, joint-stock or other unincorporated
association, as follows: at the property sought to be
recovered, and if the principal office or principal
place of business of such corporation, joint stock or
other unincorporated association is not located on the
property sought to be recovered, and if the petitioner
shall have written information of the principal office
or principal place of business within the state, at the
last place as to which petitioner has such information,
or if the petitioner shall have no such information but
shall have written information of any office or place
of business within the state, to any such place as to
which the petitioner has such information. Allegations
as to such information as may affect the mailing
address shall be set forth either in the petition, or
in a separate affidavit and filed as part of the proof
of service.
2. The notice of petition, or order to show cause, and petition
together with proof of service thereof shall be filed with
the court or clerk thereof within three days after;
(a) personal delivery to respondent, when service has been
made by that means, and such service shall be complete
immediately upon such personal delivery; or
(b) mailing to respondent, when service is made by the
alternatives above provided, and such service shall be
complete upon the filing of proof of service.
Sec. 741. CONTENTS OF PETITION.
The petition shall be verified by the person authorized by
section seven hundred twenty-one to maintain the proceeding; or
by a legal representative, attorney or agent of such person
pursuant to subdivision (d) of section thirty hundred twenty of
the civil practice law and rules. An attorney of such person may
verify the petition on information and belief notwithstanding the
fact that such person is in the county where the attorney has his
office. Every petition shall:
1. State the interest of the petitioner in the premises from
which removal is sought.
2. State the respondent's interest in the premises and his
relationship to petitioner with regard thereto.
3. Describe the premises from which removal is sought.
4. State the facts upon which the special proceeding is based.
5. State the relief sought. The relief may include a judgment
for rent due, and for a period of occupancy during which no
rent is due, for the fair value of use and occupancy of the
premises if the notice of petition contains a notice that a
demand for such a judgment has been made.
Sec. 743. ANSWER.
Except as provided in section 732, relating to a proceeding for
non-payment of rent, at the time when the petition is to be heard
the respondent, or any person in possession or claiming
possession of the premises, may answer, orally or in writing. If
the answer is oral the substance thereof shall be indorsed upon
the petition. If the notice of petition was served at least eight
days before the time at which it was noticed to be heard and it
so demands, the answer shall be made at least three days before
the time the petition is noticed to be heard and, if in writing,
it shall be served within such time; whereupon any reply shall be
served at least one day before such time. The answer may contain
any legal or equitable defense, or counterclaim. The court may
render affirmative judgment for the amount found due on the
counterclaim.
Sec. 745. TRIAL.
1. Where triable issues of fact are raised, they shall be tried
by the court unless, at the time the petition is noticed to
be heard, a party demands a trial by jury, in which case
trial shall be by jury. At the time when issue is joined the
court, in its discretion at the request of either party and
upon proof to its satisfaction by affidavit or orally that
an adjournment is necessary to enable the applicant to
procure his necessary witnesses, or by consent of all the
parties who appear, may adjourn the trial of the issue, but
not more than ten days, except by consent of all parties.
2. In the city of New York:
(a) In a summary proceeding upon the second request by the
tenant for an adjournment, the court shall direct that
the tenant post all sums as they become due for future
rent and use and occupancy, which may be established
without the use of expert testimony, unless waived by
the court for good cause shown. Two adjournments shall
not include an adjournment requested by a tenant
unrepresented by counsel for the purpose of securing
counsel made on the initial return date of the
proceeding. Such future rent and use and occupancy sums
shall be deposited with the clerk of the court or paid
to such other person or entity, including the
petitioner, as the court shall direct or shall be
expended for such emergency repairs as the court shall
approve.
(b) In any adjournment of a summary proceeding, other than
on consent or at the request of the petitioner, the
court shall at the petitioner's request state on the
record why for good cause shown it is not directing the
tenant to pay or post all sums demanded pursuant to a
lease or rental agreement in the proceeding as rent and
use and occupancy.
(c) The provisions of this subdivision shall not apply if
the housing accommodation in question or the public
areas pertaining thereto are charged with immediately
hazardous violations of record as defined by the New
York city housing maintenance code.
(d) The court may dismiss any summary proceeding without
prejudice and with costs to the respondent by reason of
excessive adjournments requested by the petitioner.
(e) The provisions of this subdivision shall not be
construed as to deprive a tenant of a trial of any
summary proceeding.
Sec. 747. JUDGMENT.
1. The court shall direct that a final judgment be entered
determining the rights of the parties. The judgment shall
award to the successful party the costs of the special
proceeding.
2. The judgment shall not bar an action to recover the
possession of real property. The judgment shall not bar an
action, proceeding or counterclaim, commenced or interposed
within sixty days of entry of the judgment, for affirmative
equitable relief which was not sought by counterclaim in the
proceeding because of the limited jurisdiction of the court.
3. If the proceeding is founded upon an allegation of forcible
entry or forcible holding out the court may award to the
successful party a fixed sum as costs, not exceeding fifty
dollars, in addition to his disbursements.
4. The judgment, including such money as it may award for rent
or otherwise, may be docketed in such books as the court
maintains for recording the steps in a summary proceeding;
unless a rule of the court, or the court by order in a given
case, otherwise provides, such judgment need not be recorded
or docketed in the books, if separately maintained, in which
are docketed money judgments in an action.
Sec. 749. WARRANT.
1. Upon rendering a final judgment for petitioner, the court
shall issue a warrant directed to the sheriff of the county
or to any constable or marshal of the city in which the
property, or a portion thereof, is situated, or, if it is
not situated in a city, to any constable of any town in the
county, describing the property, and commanding the officer
to remove all persons, and, except where the case is within
section 715, to put the petitioner into full possession.
2. The officer to whom the warrant is directed and delivered
shall give at least seventy-two hours notice, in writing and
in the manner prescribed in this article for the service of
a notice of petition, to the person or persons to be evicted
or dispossessed and shall execute the warrant between the
hours of sunrise and sunset.
3. The issuing of a warrant for the removal of a tenant cancels
the agreement under which the person removed held the
premises, and annuls the relation of landlord and tenant,
but nothing contained herein shall deprive the court of the
power to vacate such warrant for good cause shown prior to
the execution thereof. Petitioner may recover by action any
sum of money which was payable at the time when the special
proceeding was commenced and the reasonable value of the use
and occupation to the time when the warrant was issued, for
any period of time with respect to which the agreement does
not make any provision for payment of rent.
Sec. 751. STAY UPON PAYING RENT OR GIVING UNDERTAKING;
DISCRETIONARY STAY OUTSIDE CITY OF NEW YORK.
The respondent may, at any time before a warrant is issued, stay
the issuing thereof and also stay an execution to collect the
costs, as follows:
1. Where the lessee or tenant holds over after a default in the
payment of rent, or of taxes or assessments, he may effect a
stay by depositing the amount of the rent due or of such
taxes or assessments, and interest and penalty, if any
thereon due, and the costs of the special proceeding, with
the clerk of the court, or where the office of clerk is not
provided for, with the court, who shall thereupon, upon
demand, pay the amount deposited to the petitioner or his
duly authorized agent; or by delivering to the court or
clerk his undertaking to the petitioner in such sum as the
court approves to the effect that he will pay the rent, or
such taxes or assessments, and interest and penalty and
costs within ten days, at the expiration of which time a
warrant may issue, unless he produces to the court
satisfactory evidence of the payment.
2. Where the lessee or tenant has taken the benefit of an
insolvency statute or has been adjudicated a bankrupt, he
may effect a stay by paying the costs of the special
proceeding and by delivering to the court or clerk his
undertaking to the petitioner in such a sum as the court
approves to the effect that he will pay the rent of the
premises as it has become or thereafter becomes due.
3. Where he continues in possession of real property which has
been sold by virtue of an execution against his property, he
may effect a stay by paying the costs of the special
proceeding, and delivering to the court or clerk an
affidavit that he claims the possession of the property by
virtue of a right or title acquired after the sale or as
guardian or trustee for another; together with his
undertaking to the petitioner in such a sum as the court
approves to the effect that he will pay any costs and
damages which may be recovered against him in an action to
recover the property brought against him by the petitioner
within six months thereafter; and that he will not commit
any waste upon or injury to the property during his
occupation thereof.
4. (a) In a proceeding to recover the possession of
premises outside the city of New York occupied for
dwelling purposes, other than a room or rooms in an
hotel, lodging house or rooming house, upon the ground
that the occupant is holding over and continuing in
possession of the premises after the expiration of his
term and without the permission of the landlord, or, in
a case where a new lessee is entitled to possession,
without the permission of the new lessee, the court, on
application of the occupant, may stay the issuance of a
warrant and also stay any execution to collect the
costs of the proceeding for a period of not more than
four months, if it appears that the premises described
in the petition are used for dwelling purposes; that
the application is made in good faith; that the
applicant cannot within the neighborhood secure
suitable premises similar to those occupied by him and
that he made due and reasonable efforts to secure such
other premises, or that by reason of other facts it
would occasion extreme hardship to him or his family if
the stay were not granted.
(b) Such stay shall be granted and continue effective only
upon the condition that the person against whom the
judgment is entered shall make a deposit in court of
the entire amount, or such installments thereof from
time to time, as the court may direct, for the
occupation of the premises for the period of the stay,
at the rate for which he was liable as rent for the
month immediately prior to the expiration of his term
or tenancy, plus such additional amount, if any, as the
court may determine to be the difference between such
rent and the reasonable rent or value of the use and
occupation of the premises; such deposit shall also
include all rent unpaid by the occupant prior to the
stay.
The amount of such deposit shall be determined by the
court upon the application for the stay and such
determination shall be final and conclusive in respect
to the amount of such deposit, and the amount thereof
shall be paid into court, in such manner and in such
installments, if any, as the court may direct. A
separate account shall be kept of the amount to the
credit of each proceeding, and all such payments shall
be deposited in a bank or trust company and shall be
subject to the check of the clerk of the court, if
there be one, or otherwise of the court. The clerk of
the court, if there be one, and otherwise the court
shall pay to the landlord or his duly authorized agent,
the amount of such deposit in accordance with the terms
of the stay or the further order of the court.
(c) The provisions of this subdivision shall not apply to a
proceeding where the petitioner shows to the
satisfaction of the court that he desires in good faith
to recover the premises for the purposes of demolishing
same with the intention of constructing a new building,
plans for which new building shall have been duly filed
and approved by the proper authority; nor shall it
apply to a proceeding to recover possession upon the
ground that an occupant is holding over and is
objectionable if the landlord shall establish to the
satisfaction of the court that such occupant is
objectionable.
(d) Any provision of a lease or other agreement whereby a
lessee or tenant waives any provision of this
subdivision shall be deemed against public policy and
void.
(e) The provisions of this subdivision shall continue in
effect only until September first, nineteen hundred
sixty-seven.
Sec. 753. STAY WHERE TENANT HOLDS OVER IN PREMISES OCCUPIED FOR
DWELLING PURPOSES IN CITY OF NEW YORK.
1. In a proceeding to recover the possession of premises in the
city of New York occupied for dwelling purposes, other than
a room or rooms in an hotel, lodging house, or rooming
house, upon the ground that the occupant is holding over and
continuing in possession of the premises after the
expiration of his term and without the permission of the
landlord, or, in a case where a new lessee is entitled to
possession, without the permission of the new lessee, the
court, on application of the occupant, may stay the issuance
of a warrant and also stay any execution to collect the
costs of the proceeding for a period of not more than six
months, if it appears that the premises are used for
dwelling purposes; that the application is made in good
faith; that the applicant cannot within the neighborhood
secure suitable premises similar to those occupied by him
and that he made due and reasonable efforts to secure such
other premises, or that by reason of other facts it would
occasion extreme hardship to him or his family if the stay
were not granted.
2. Such stay shall be granted and continue effective only upon
the condition that the person against whom the judgment is
entered shall make a deposit in court of the entire amount,
or such installments thereof from time to time as the court
may direct, for the occupation of the premises for the
period of the stay, at the rate for which he was liable as
rent for the month immediately prior to the expiration of
his term or tenency, plus such additional amount, if any, as
the court may determine to be the difference between such
rent and the reasonable rent or value of the use and
occupation of the premises; such deposit shall also include
all rent unpaid by the occupant prior to the period of the
stay. The amount of such deposit shall be determined by the
court upon the application for the stay and such
determination shall be final and conclusive in respect to
the amount of such deposit, and the amount thereof shall be
paid into court, in such manner and in such installments, if
any, as the court may direct. A separate account shall be
kept of the amount to the credit of each proceeding, and all
such payments shall be deposited in a bank or trust company
and shall be subject to the check of the clerk of the court,
if there be one, or otherwise of the court. The clerk of the
court, if there be one, and otherwise the court shall pay to
the landlord or his duly authorized agent, the amount of
such deposit in accordance with the terms of the stay or the
further order of the court.
3. The provisions of this section shall not apply to a
proceeding where the petitioner shows to the satisfaction of
the court that he desires in good faith to recover the
premises for the purpose of demolishing same with the
intention of constructing a new building, plans for which
new building shall have been duly filed and approved by the
proper authority; nor shall it apply to a proceeding to
recover possession upon the ground that an occupant is
holding over and is objectionable if the landlord shall
establish to the satisfaction of the court that such
occupant is objectionable.
4. In the event that such proceeding is based upon a claim that
the tenant or lessee has breached a provision of the lease,
the court shall grant a ten day stay of issuance of the
warrant, during which time the respondent may correct such
breach.
5. Any provision of a lease or other agreement whereby a lessee
or tenant waives any provision of this section shall be
deemed against public policy and void.
Sec. 755. STAY OF PROCEEDING OR ACTION FOR RENT UPON FAILURE TO
MAKE REPAIRS.
1. (a) Upon proper proof that a notice or order to remove
or cease a nuisance or a violation or to make necessary
and proper repairs has been made by the municipal
department charged with the enforcement of the multiple
dwelling law, the multiple residence law, or any other
applicable local housing code, or officer or officers
thereof charged with the supervision of such matters,
if the condition against which such notice or order is
directed is, in the opinion of the court, such as to
constructively evict the tenant from a portion of the
premises occupied by him, or is, or is likely to
become, dangerous to life, health, or safety, the court
before which the case is pending may stay proceedings
to dispossess the tenant for non-payment of rent or any
action for rent or rental value. In any such
proceeding, on the question of fact, as to the
condition of the dwelling the landlord or petitioner
shall have the burden of disproving the condition of
the dwelling as such condition is described in the
notice or order.
(b) Upon proper proof of the existence of a condition that
is in the opinion of the court, such as to
constructively evict the tenant from a portion of the
premises occupied by him, or is or is, likely to
become, dangerous to life, health, or safety, the court
before which the case is pending may stay proceedings
to dispossess the tenant for non-payment of rent, or
any action for rent or rental value.
(c) The court shall in no case grant a stay where it
appears that the condition against which the notice or
order is directed has been created by the willful or
negligent act of the tenant or his agent. Such stay
shall continue in force, until an order shall be made
by the court vacating it, but no order vacating such
stay shall be made, except upon three days' notice of
hearing to the tenant, or respondent, or his attorney,
and proof that such notice or order has been complied
with.
2. The tenant or respondent shall not be entitled to the stay
unless he shall deposit with the clerk of the court the rent
then due, which shall, for the purposes of this section, be
deemed the same as the tenant was liable for during the
preceding month or such as is reserved as the monthly rent
in the agreement under which he obtained possession of the
premises. The stay may be vacated upon three days' notice
upon failure to deposit with the clerk the rent within five
days after it is due, during the pendency of the proceeding
or action.
3. During the continuance of the stay, the court may direct, in
its discretion, upon three days notice to all parties, the
release to a contractor or materialman of all or such part
of the moneys on deposit as shall be sufficient to pay bills
properly presented by such contractor or materialman for the
maintenance of and necessary repairs to the building
(including but not limited to payments for fuel,
electricity, gas, janitorial services and repairs necessary
to remove violations), upon a showing by the tenant that the
landlord is not meeting his legal obligations therefor or
direct such release to a municipal department to pay bills
and expenses for such maintenance and repairs upon a showing
that the landlord did not meet his legal obligation to
provide such maintenance or perform repairs and that the
department incurred expenses therefor. Upon the entry of an
order vacating the stay the remaining money deposited shall
be paid to the plaintiff or landlord or his duly authorized
agent.
4. Neither party shall be entitled to any costs in any
proceeding or action wherein the stay shall be granted
except that costs may be awarded against the tenant or
defendant in the discretion of the court in the event the
condition complained of shall be found to be due to the
willful act of the tenant or defendant, such costs, however,
not to exceed the sum of twenty-five dollars.
Sec. 756. STAY OF SUMMARY PROCEEDINGS OR ACTIONS FOR RENT UNDER
CERTAIN CONDITIONS.
In the event that utilities are discontinued in any part of a
multiple dwelling because of the failure of the landlord or other
person having control of said multiple dwelling to pay for
utilities for which he may have contracted, any proceeding to
dispossess a tenant from said building or an action against any
tenant of said building for rent shall be stayed until such time
as the landlord or person having control of said multiple
dwelling pays the amount owing for said utilities and until such
time as the utilities are restored to working order.
Sec. 761. REDEMPTION BY LESSEE.
Where the special proceeding is founded upon an allegation that a
lessee holds over after a default in the payment of rent, and the
unexpired term of the lease under which the premises are held
exceeds five years at the time when the warrant is issued the
lessee, his executor, administrator or assignee, at any time
within one year after the execution of the warrant, unless by the
terms of the lease such lessee shall have waived his right to
redeem, or such lessee, executor, administrator or assignee shall
have subsequently waived the right to redeem by a written
instrument filed and recorded in the office in which the lease is
recorded, or if not so recorded, in the office in which deeds are
required to be recorded of the county in which the leased
premises are located, may pay or tender to the petitioner, his
heir, executor, administrator or assignee, or if, within five
days before the expiration of the year he cannot be found with
reasonable diligence within the city or town wherein the property
or a portion thereof is situated, then to the court which issued
the warrant, all rent in arrears at the time of the payment or
tender with interest thereupon and the costs and charges incurred
by the petitioner. Thereupon the person making the payment or
tender shall be entitled to the possession of the demised
premises under the lease and may hold and enjoy the same
according to the terms of the original demise, except as
otherwise prescribed in section 765.
Sec. 763. REDEMPTION BY CREDITOR OF LESSEE.
In a case specified in section 761, a judgment creditor of the
lessee whose judgment was docketed in the county before the
precept was issued, or a mortgagee of the lease whose mortgage
was duly recorded in the county before the precept was issued,
unless by the terms of the lease the lessee shall have waived his
right to redeem, or such lessee, or his executor, administrator
or assignee shall have subsequently waived the right to redeem by
a written instrument filed and recorded in the office in which
the lease is recorded, or if not so recorded, in the office in
which deeds are required to be recorded of the county in which
the leased premises are located, before such judgment was
docketed or such mortgage recorded, or such judgment creditor or
mortgagee himself shall have waived in writing his right to
redeem, may at any time before the expiration of one year after
the execution of the warrant, unless a redemption has been made
as prescribed in section 761, file with the court which issued
the warrant a notice specifying his interest and the sum due to
him, describing the premises, and stating that it is his
intention to redeem as prescribed in this section. If a
redemption is not made by the lessee, his executor, administrator
or assignee within a year after the execution of the warrant, the
person so filing a notice, or, if two or more persons have filed
such notices the one who holds the first lien, at any time before
two o'clock of the day, not a Sunday or a public holiday, next
succeeding the last day of the year, may redeem for his own
benefit in like manner as the lessee, his executor, administrator
or assignee might have so redeemed. Where two or more judgment
creditors or mortgagees have filed such notices, the holder of
the second lien may so redeem at any time before two o'clock of
the day, not a Sunday or a public holiday, next succeeding that
in which the holder of the first lien might have redeemed; and
the holder of the third and each subsequent lien may redeem in
like manner at any time before two o'clock of the day, not a
Sunday or a public holiday, next succeeding that in which his
predecessor might have redeemed. But a second or subsequent
redemption is not valid unless the person redeeming pays or
tenders to each of his predecessors who has redeemed the sum paid
by him to redeem and also the sum due upon his judgment or
mortgage; or deposits those sums with the court for the benefit
of his predecessor or predecessors.
Sec. 765. EFFECT OF REDEMPTION UPON LEASE.
Where a redemption is made, as prescribed in this article, the
rights of the person redeeming are subject to a lease, if any,
executed by the petitioner since the warrant was issued, so far
that the new lessee, his assigns, undertenants, or other
representatives, upon complying with the terms of the lease, may
hold the premises so leased until twelve o'clock, noon, of the
first day of May next succeeding the redemption. And in all other
respects, the person so redeeming, his assigns and
representatives succeed to all the rights and liabilities of the
petitioner under such a lease.
Sec. 767. ORDER OF REDEMPTION; LIABILITY OF PERSONS REDEEMING.
The person redeeming, as prescribed in this article or the owner
of the property so redeemed, may present to the court which
issued the warrant a petition setting forth the facts of the
redemption and praying for an order establishing the rights and
liabilities of the parties upon the redemption, whereupon the
court must make an order requiring the other party to the
redemption to show cause at a time and place therein specified
why the prayer of the petition should not be granted. The order
to show cause must be made returnable not less than two nor more
than ten days after it is granted; and it must be served at least
two days before it is returnable. Upon the return thereof, the
court must hear the allegations and proofs of the parties and
must make such a judgment as justice requires. The costs and
expenses must be paid by the petitioner. The judgment, or a
certified copy thereof, may be recorded in like manner as a deed.
A person, other than the lessee, who redeems as prescribed in
this article succeeds to all the duties and liabilities of the
lessee accruing after the redemption as if he was named as lessee
in the lease.
Sec. 769. JURISDICTION; COURT; VENUE.
1. A special proceeding by tenants of a dwelling in the city of
New York or the counties of Nassau, Suffolk, Rockland and
Westchester for a judgment directing the deposit of rents
into court and their use for the purpose of remedying
conditions dangerous to life, health or safety may be
maintained in the civil court of the city of New York, the
district court of the counties of Suffolk and Nassau and the
county courts or city courts in the counties of Rockland and
Westchester.
2. The place of trial of the special proceeding shall be within
the county in which the real property or a portion thereof
from which the rents issue is situated.
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ARTICLE 7-A
SPECIAL PROCEEDINGS BY TENANTS OF DWELLINGS
IN THE CITY OF NEW YORK AND THE COUNTIES OF NASSAU,
SUFFOLK, ROCKLAND AND WESTCHESTER FOR JUDGMENT
DIRECTING DEPOSIT OF RENTS AND THE USE THEREOF FOR THE
PURPOSE OF REMEDYING CONDITIONS DANGEROUS TO LIFE,
HEALTH OR SAFETY
Section 769. Jurisdiction; court; venue.
770. Grounds for the proceeding.
771. Commencement; notice of petition; time
and manner of service.
772. Contents of petition.
773. Answer.
774. Trial.
775. Defenses.
776. Judgment.
777. Application by mortgagee or lienor of
record or other person having an interest in
the property.
778. Appointment of administrator.
779. Presentation or settlement of accounts.
780. Waiver void.
781. "Owner" defined.
782. "Dwelling" defined.
783. Defense of warranty of habitability
inapplicable.
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Sec. 770. GROUNDS FOR THE PROCEEDING.
1. One-third or more of the tenants occupying a dwelling
located in the city of New York or the commissioner of the
department of the city of New York charged with enforcement
of the housing maintenance code of such city, or in the
counties of Nassau, Suffolk, Rockland and Westchester may
maintain a special proceeding as provided in this article,
upon the ground that there exists in such dwellings or in
any part thereof a lack of heat or of running water or of
light or of electricity or of adequate sewage disposal
facilities, or any other condition dangerous to life, health
or safety, which has existed for five days, or an
infestation by rodents, or any combination of such
conditions; or course of conduct by the owner or his agents
of harassment, illegal eviction, continued deprivation of
services or other acts dangerous to life, health or safety.
2. If the proceeding is instituted by the commissioner of the
department of the city of New York charged with enforcement
of the housing maintenance code of such city, one-third or
more of the tenants may, at any time thereafter during the
pendency of the proceeding or after final judgment pursuant
to section seven hundred seventy-six or seven hundred
seventy-seven of this article, petition for substitution of
themselves in place and stead of such commissioner of such
department. Such substitution shall be ordered by the court
unless good reason to the contrary shall be shown.
Sec. 771. COMMENCEMENT; NOTICE OF PETITION; TIME AND MANNER OF
SERVICE.
1. A special proceeding prescribed by this article shall be
commenced by the service of a petition and notice of
petition. A notice of petition may be issued only by a judge
or the clerk of the court.
2. The notice of petition shall specify the time and place of
the hearing on the petition and state that if at such time,
a defense to such petition is not interposed and established
by the owner or any mortgagee or lienor of record, a final
judgment may be rendered directing that the rents due on the
date of entry of such judgment from the petitioning tenants
and the rents due on the dates of service of such judgment
on all other tenants occupying such dwelling, from such
other tenants, shall be deposited with the administrator
appointed pursuant to section seven hundred seventy-eight of
this article, and any rents to become due in the future from
such petitioners and from all other tenants occupying such
dwelling shall be deposited with such administrator as they
fall due; and that such deposited rents shall be used,
subject to the court's direction, to the extent necessary to
remedy the condition or conditions alleged in the petition.
3. The notice of petition and petition shall be served upon the
owner of such dwelling last registered with the department
of housing preservation and development of such city
pursuant to article forty-one of chapter twenty-six of the
administrative code of the city of New York and in Nassau,
Suffolk, Rockland and Westchester counties upon the person
set forth as the owner on the last recorded deed to the
rented property and upon every mortgagee and lienor of
record, and upon the city of New York, at least five days
before the time at which the petition is noticed to be
heard.
4. The proof of service shall be filed with the court before
which the petition is to be heard on or before the return
date.
5. Manner of service.
a. Service of the notice of petition and petition shall be
made by personally delivering them to the person or
persons required to be served pursuant to subdivision
three of this section. Service upon the city of New
York shall be made by personal delivery to the
commissioner of the city department charged with
enforcement of the housing maintenance code of such
city, or to an agent duly authorized to accept such
service on his behalf. If service cannot with due
diligence be made within the city upon an owner,
mortgagee or lienor of record in such manner, it shall
be made:
(1) upon the owner last registered with the department
of housing preservation and development pursuant
to article forty-one of chapter twenty-six of the
administrative code of the city of New York and in
Nassau, Suffolk, Rockland and Westchester counties
upon the person set forth as the owner on the last
recorded deed to the rented property by delivering
to and leaving personally with the person
designated pursuant to article forty-one of
chapter twenty-six of such code as managing agent
of the subject dwelling, and in Nassau, Suffolk,
Rockland and Westchester counties upon the person
designated as the managing agent of the rented
property if one shall have been designated, a copy
of the notice of petition and petition;
(2) upon a mortgagee or lienor of record, by
registered or certified mail, return receipt
requested, at the address set forth in the
recorded mortgage or lien.
b. If such personal service upon the person designated
pursuant to article forty-one of chapter twenty-six of
the administrative code of the city of New York as
managing agent of the subject dwelling and in Nassau,
Suffolk, Rockland and Westchester counties upon the
person set forth as the owner on the last recorded deed
to the rented property cannot be made with due
diligence, service upon such last registered owner
shall be made by affixing a copy of the notice and
petition upon a conspicuous part of the subject
dwelling; and in addition, within two days after such
affixing, by sending a copy thereof by registered or
certified mail, return receipt requested, to the owner
at the last address registered by him with the
department of housing preservation and development or,
in the absence of such registration, to the address set
forth in the last recorded deed with respect to such
premises.
6. Notice to non-petitioning tenants. Notice of the proceeding
shall be given to the non-petitioning tenants occupying the
dwelling by affixing a copy of the notice of petition and
petition upon a conspicuous part of the subject dwelling.
Sec. 772. CONTENTS OF PETITION.
The petition shall:
1. Allege material facts showing that there exists in such
dwelling or any part thereof one or more of the following: a
lack of heat or of running water or of light or electricity
or of adequate sewage disposal facilities, or any other
condition dangerous to life, health or safety, which has
existed for five days, or an infestation of rodents or
course of conduct by the owner or his agents of harassment,
illegal eviction, continued deprivation of services or other
acts dangerous to life, health or safety.
2. If the petitioners shall be tenants occupying the dwelling,
they shall allege the number of petitioners making the
petition and that they constitute one-third or more of the
tenants of said dwelling in occupancy thereof.
3. Allege a brief description of the nature of the work
required to remove or remedy the condition and an estimate
as to the cost thereof except that if the petitioners shall
be tenants occupying the dwelling, the petition may allege
the conditions complained of in which event such description
shall not be required to be made by anyone not a party to
the petition.
4. If the petitioners shall be tenants occupying the dwelling,
they shall allege the amount of rent due from each such
petitioner, monthly.
5. State the relief sought.
Sec. 773. ANSWER.
At the time when the petition is to be heard, the owner and any
mortgagee or lienor of record, shall answer in writing. If the
notice of petition was served at least eight days before the time
at which it was noticed to be heard and it so demands, the answer
shall be served at least three days before the time the petition
is noticed to be heard and any reply shall be served at least one
day before such time.
Sec. 774. TRIAL.
Where triable issues of fact are raised, they shall be tried by
the court without a jury at the time when issue is joined.
However, the court, in its discretion, may grant an adjournment
of such trial at request of either party, if it determines that
an adjournment is necessary to enable either of the parties to
procure the necessary witnesses, or upon consent of all the
parties who appear. Such adjournment shall not be for more than
five days except by consent of all the parties who appear.
Sec. 775. DEFENSES.
It shall be a sufficient defense to the proceeding, if the owner
or any mortgagee or lienor of record establish that:
a. The condition or conditions alleged in the petition did not
in fact exist or that such condition or conditions have been
removed or remedied; or
b. Such condition or conditions has been caused by a
petitioning tenant or tenants or members of the family or
families of such petitioner or petitioners or of their
guests or by other residents of the dwelling or their
families or guests; or
c. Any tenant or resident of the dwelling has refused entry to
the owner or his agent to a portion of the premises for the
purpose of correcting such condition or conditions.
Sec. 776. JUDGMENT.
The court shall render a final judgment either
a. Dismissing the petition for failure to affirmatively
establish the allegations thereof or because of the
affirmative establishment by the owner or a mortgagee or
lienor of record of a defense or defenses specified in
section seven hundred seventy- five of this article; or
b. Directing that
(1) the rents due on the date of the entry of such judgment
from the petitioning tenants and the rents due on the
dates of service of the judgment on all other
residential and non-residential tenants occupying such
dwelling from such other tenants, shall be deposited
with the administrator appointed by the court, pursuant
to section seven hundred seventy-eight of this article;
(2) any rents to become due in the future from all tenants
occupying such dwelling shall be deposited with such
administrator as they fall due;
(3) such deposited rents shall be used, subject to the
court's direction, to the extent necessary to remedy
the condition or conditions alleged in the petition and
(4) upon the completion of such work in accordance with
such judgment, any remaining surplus shall be turned
over to the owner, together with a complete accounting
of the rents deposited and the costs incurred; and
granting such other and further relief as to the court
may seem just and proper. A certified copy of such
judgment shall be served personally upon each non-
petitioning tenant occupying such dwelling and upon the
city of New York by service as provided in subdivision
five of section seven hundred seventy- one of this
article. If personal service on any such non-
petitioning tenant cannot be made with due diligence,
service on such tenant shall be made by affixing a
certified copy of such judgment on the entrance door of
such tenant's apartment, store or other unit and, in
addition, within one day after such affixing, by
sending a certified copy thereof by registered mail,
return receipt requested, to such tenant. Any right of
the owner of such dwelling to collect such rent moneys
from any petitioning tenant of such dwelling on or
after the date of entry of such judgment, and from any
non-petitioning tenant of such dwelling on or after the
date of service of such judgment on such non-
petitioning tenant as herein provided, shall be void
and unenforceable to the extent that such petitioning
or non-petitioning tenant, as the case may be, has
deposited such moneys with the administrator in
accordance with the terms of such judgment, regardless
of whether such right of the owner arises from a lease,
contract, agreement or understanding heretofore or
hereafter made or entered into or arises as a matter of
law from the relationship of the parties or otherwise.
It shall be a valid defense in any action or proceeding
against any such tenant to recover possession of real
property for the non-payment of rent or for use or
occupation to prove that the rent alleged to be unpaid
was deposited with the administrator in accordance with
the terms of a judgment entered under this section.
Sec. 777. APPLICATION BY MORTGAGEE OR LIENOR OF RECORD OR OTHER
PERSON HAVING AN INTEREST IN THE PROPERTY.
a. If, after a trial, the court shall determine that the facts
alleged in the petition have been affirmatively established
by the petitioners, that no defense thereto specified in
section seven hundred seventy-five has been affirmatively
established by the owner or a mortgagee or lienor of record,
and that the facts alleged in the petition warrant the
granting of the relief sought, and if the owner or any
mortgagee or lienor of record or other person having an
interest in the property, shall apply to the court to be
permitted to remove or remedy the conditions specified in
such petition and shall (1) demonstrate the ability promptly
to undertake the work required; and (2) post security for
the performance thereof within the time, and in the amount
and manner, deemed necessary by the court, then the court,
in lieu of rendering judgment as provided in section seven
hundred seventy-six of this article, may issue an order
permitting such person to perform the work within a time
fixed by the court.
b. If, after the issuance of an order pursuant to subdivision a
of this section, but before the time fixed in such order for
the completion of the work prescribed therein, it shall
appear to the petitioners that the person permitted to do
the same is not proceeding with due diligence, the petitions
may apply to the court on notice to those persons who have
appeared in the proceeding for a hearing to determine
whether judgment should be rendered immediately as provided
in subdivision c of this section.
c. If, upon a hearing authorized in subdivision b hereof, the
court shall determine that such owner, mortgagee, lienor or
other person is not proceeding with due diligence, or upon
the failure of such owner, mortgagee, lienor or other person
to complete the work in accordance with the provisions of
said order, the court shall render a final judgment
appointing an administrator as authorized in section seven
hundred seventy-eight of this article. Such judgment shall
direct the administrator to apply the security posted by
such person to the removing or remedying of the condition or
conditions specified in the petition. In the event that the
amount of such security should be insufficient for such
purpose, such judgment shall direct the deposit of rents
with the administrator, as authorized by section seven
hundred seventy-six of this article, to the extent of such
deficiency. In the event that such security should exceed
the amount required to remove or remedy such condition or
conditions, such judgment shall direct the administrator to
file with the court, upon completion of the work prescribed
therein, a full accounting of the amount of such security
and the expenditures made pursuant to such judgment, and to
turn over such surplus to the person who posted such
security, together with a copy of such accounting.
Sec. 778. APPOINTMENT OF ADMINISTRATOR.
1. The court is authorized and empowered, in implementation of
a judgment rendered pursuant to section seven hundred
seventy-six or seven hundred seventy-seven of this article,
to appoint a person other than the owner, a mortgagee or
lienor, to receive and administer the rent moneys or
security deposited with him subject to the court's
direction. The court may appoint the commissioner of the
department of the city of New York charged with enforcement
of the housing maintenance code of such city or his designee
as such administrator, provided that he shall consent, in
writing, to such appointment. Any administrator is
authorized and empowered in accordance with the direction of
the court, to order the necessary materials, labor and
services to remove or remedy the conditions specified in the
judgment, and to make disbursements in payment thereof; and
to demand, collect and receive the rents from the tenants;
and to institute all necessary legal proceedings including,
but not limited to, summary proceedings for the removal of
any tenant or tenants; and to rent or lease for terms not
exceeding three years any part of said premises, however,
the court may direct the administrator to rent or lease
commercial parts of said premises for terms that the court
may approve. In addition, such administrator is authorized
and empowered in accordance with the direction of the court
to accept and repay such moneys as may be received from the
department charged with enforcement of the housing
maintenance code of the city of New York for the purpose of
replacing or substantially rehabilitating systems or making
other repairs or capital improvements authorized by the
court. All moneys expended by the department pursuant to the
foregoing shall constitute a debt recoverable from the owner
and a lien upon the building and lot, and upon the rents and
other income thereof. Such lien shall be enforced in
accordance with the provisions of article eight of
subchapter five of the housing maintenance code of the city
of New York. Such administrator, shall, upon completion of
the work prescribed in such judgment, file with the court a
full accounting of all receipts and expenditures for such
work. Such administrator shall dispose of the rents and
other monies deposited with him according to the following
order of priority:
(a) Payment in full for all of the work specified in the
judgment. Until all of the work specified in the
judgment has been completed and payment for such work
has been made, no other disbursements shall be
permitted, except for fuel bills, fire and liability
insurance, and bills for ordinary repairs and
maintenance.
(b) Payment of a reasonable amount for the services of such
administrator.
(c) Payment of outstanding real property tax liens claimed
by the city of New York.
(d) Payment of outstanding emergency repair liens filed and
recorded by the city of New York and outstanding liens
filed and recorded by the city pursuant to this
section.
(e) Payment to the owner of any surplus remaining after
payments of paragraphs (a) through (d) of this
subdivision have been made.
2. Unless the administrator is the city of New York, the court
may allow from the rent moneys or security on deposit a
reasonable amount for services of such administrator.
3. Unless such administrator is the city of New York, the
administrator so appointed shall furnish a bond, the amount
and form of which shall be approved by the court. In its
discretion and for good cause shown, the court may dispense
with the necessity for a bond. The cost of a required bond
shall be paid from the moneys so deposited.
4. Such administrator shall file a transcript of the judgment
appointing him with the county clerk within fifteen days of
his appointment.
5. The duties of such administrator shall not be affected by
the appointment of a receiver in an action to foreclose a
mortgage on the premises, except that the rights of the
owner, including the right to any surplus, pursuant to
paragraph (e) of subdivision one of this section, shall pass
to the receiver. The court in which the action to foreclose
a mortgage on the premises is pending may appoint such
administrator to serve as receiver in that action in
addition to his duties as administrator pursuant to this
article.
6. Such administrator shall be liable only in his official
capacity for injury to persons and property by reason of
conditions of the premises in a case where an owner would
have been liable; he shall not have any liability in his
personal capacity.
7. No city or county specified in section seven hundred sixty-
nine of this article shall be liable to any party, including
such administrator or the owner, for injury to persons or
property by reason of conditions of the premises or the acts
or omissions of such administrator, except that when the
city of New York is appointed administrator, liability shall
be determined in accordance with subdivision six of this
section.
8. The commissioner of the department of the city of New York
charged with the enforcement of the housing maintenance code
of such city shall promulgate rules and regulations
regarding criteria for the selection of administrators to be
appointed pursuant to this section and shall establish and
maintain a list of persons approved by such department.
Unless the administrator is the city of New York, any person
appointed as an administrator within such city shall be
selected from among the persons approved as administrators
pursuant to such list.
9. Such administrator shall, within thirty days of appointment,
file with the court a plan for the provision of essential
services and for the correction of such other hazardous
conditions as may exist at the premises, specifying dates by
which such services shall be provided and such conditions
corrected. If such administrator cannot provide such
services and correct such conditions by the dates specified
in the plan, he shall be required to file with the court an
amendment to the plan setting forth the reasons why such
services and corrections could not be provided by such date
and specifying new dates for such services and corrections.
Such plan and any amendments to such plan shall be provided
to the tenants by mail or by posting in a common area of the
building and to the owner of record by mail.
Sec. 779. PRESENTATION OR SETTLEMENT OF ACCOUNTS.
The court shall require the keeping of written accounts itemizing
the receipts and expenditures under an order issued pursuant to
section seven hundred seventy-six or seven hundred seventy-seven
of this article, which shall be open to inspection by the owner,
any mortgagee or lienor or any other person having an interest in
such receipts or expenditures provided, however, notwithstanding
any other provision of law to the contrary, such information as
may be in the possession of the city of New York with the
department charged with the enforcement of the housing
maintenance code of such city shall be available from such
department for inspection only by the owner, tenant of such
property, or person having a recorded interest in the property.
Upon motion of the court or the administrator or of the owner,
any mortgagee or lienor of record or of any person having an
interest, the court may require a presentation or settlement of
the accounts with respect thereto. Notice of a motion for
presentation or settlement of such accounts shall be served on
the owner, any mortgagee or other lienor of record who appeared
in the proceeding and any person having an interest in such
receipts or expenditures.
Sec. 780. WAIVER VOID.
Any provision of a lease or other agreement whereby any provision
of this article for the benefit of a tenant, resident or occupant
of a dwelling is waived, shall be deemed against public policy
and shall be void.
Sec. 781. "OWNER" DEFINED.
As used in this article, the term "owner" shall mean and include
the owner or owners of the freehold of the premises or lesser
estate therein, mortgagee or vendee in possession, assignee of
rents, receiver, executor, trustee, lessee, agent, or any other
person, firm or corporation, directly or indirectly in control of
a dwelling, but shall not include a receiver appointed pursuant
to section three hundred nine of the multiple dwelling law.
Sec. 782. "DWELLING" DEFINED.
As used in this article, the term "dwelling" shall mean any
building or structure or portion thereof which is occupied in
whole or in part as the home, residence or sleeping place of one
or more human beings and is either rented, leased, let or hired
out, to be occupied, or is occupied as the residence or home of
three or more families living independently of each other; or is
a garden-type maisonette dwelling project as defined in the
multiple dwelling law or other similar dwellings which in their
aggregate are arranged or designed to provide three or more
apartments, have common facilities such as but not limited to a
sewer line, water main, or heating plant and are operated as a
unit under common ownership, notwithstanding that certificates of
occupancy were issued for portions thereof as one or two family
dwellings or that the dwellings are not a multiple dwelling as
defined in the multiple dwelling law.
Sec. 783. DEFENSE OF WARRANTY OF HABITABILITY INAPPLICABLE.
Notwithstanding any other provision of law, in any proceeding for
the payment of rent commenced by an administrator appointed
pursuant to this article, the provisions of section two hundred
thirty-five-b of the real property law pertaining to the warranty
of habitability shall not be a defense to such a proceeding for
rent which accrues during the period of time that a judgment or
an order pursuant to this article is in effect, unless the court
determines that the conditions upon which such defense is based
were caused by the failure of such administrator to perform his
duties in a reasonable manner.
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ARTICLE 8
WASTE AND OTHER ACTIONS AND RIGHTS OF ACTION FOR INJURY TO
REAL PROPERTY
Section 801. Who liable to action for waste.
803. Alterations or replacements of
structures by person having estate for life
or years.
811. Action for waste by heir, devisee or
grantor of reversion.
812. Action for waste by ward against guardian.
813. Action for waste by grantee of real
property sold under execution.
815. Judgment in action for waste against
tenant of particular estate.
817. Action for waste against joint tenant or
tenant in common.
821. View in action for waste.
831. Action by reversioner or remainderman.
833. Recovery of fee damages by the owner of
a possessory estate for life or for years.
841. Action for nuisance.
843. Fences and structures; when private nuisance.
851. Action against certain persons holding
over as trespassers.
853. Action for forcible or unlawful entry or
detainer; treble damages.
861. Action for cutting or carrying off trees
or timber; when treble damages may be
recovered.
871. Action for the removal of encroaching
structures.
881. Access to adjoining property to make
improvements or repairs.
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Sec. 801. WHO LIABLE TO ACTION FOR WASTE.
An action for waste lies against a tenant by the curtesy, in
dower, for life, or for years, or the assignee of such a tenant,
who, during his estate or term, commits waste upon the real
property held by him, without a special and lawful written
license so to do; or against such a tenant who lets or grants his
estate and still retaining possession thereof commits waste
without a like license.
Sec. 803. ALTERATIONS OR REPLACEMENTS OF STRUCTURES BY PERSON
HAVING ESTATE FOR LIFE OR YEARS.
1. When a person having an estate for life or for years in land
proposes to make an alteration in, or a replacement of a
structure or structures located thereon, then the owner of a
future interest in such land can neither recover damages
for, nor enjoin the alteration or replacement, if the person
proposing to make such alteration or replacement complies
with the requirements hereinafter stated as to the giving of
security and establishes the following facts:
a. That the proposed alteration or replacement is one
which a prudent owner of an estate in fee simple
absolute in the affected land would be likely to make
in view of the conditions existing on or in the
neighborhood of the affected land; and
b. That the proposed alteration or replacement, when
completed, will not reduce the market value of the
interests in such land subsequent to the estate for
life or for years; and
c. That the proposed alteration or replacement is not in
violation of the terms of any agreement or other
instrument regulating the conduct of the owner of the
estate for life or for years or restricting the land in
question; and
d. That the life expectancy of the owner of the estate for
life or the unexpired term of the estate for years is
not less than five years; and
e. That the person proposing to make such alteration or
replacement, not less than thirty days prior to
commencement thereof, served upon each owner of a
future interest, who is in being and ascertained, a
written notice of his intention to make such alteration
or replacement, specifying the nature thereof, which
notice was served personally or by registered mail sent
to the last known address of each such owner of a
future interest.
2. When the owner of a future interest in the affected land
demands security that the proposed alteration or
replacement, if begun, will be completed and that he be
protected against responsibility for expenditures incident
to the making of the proposed alteration or replacement, the
court in which the action to recover damages or to enjoin
the alteration or replacement is pending, or if no such
action is pending, the supreme court, on application
thereto, on such notice to the interested parties as the
court may direct, shall fix the amount and terms of the
security reasonably necessary to satisfy such demand. The
furnishing of the security so fixed shall be a condition
precedent to the making of the proposed alteration or
replacement.
3. This section applies only to estates for life or for years
created on or after September 1, 1937.
Sec. 811. ACTION FOR WASTE BY HEIR, DEVISEE OR GRANTOR OF
REVERSION.
An heir or devisee may maintain an action for waste, committed in
time of his ancestor or testator, as well as in his own time. The
grantor of a reversion may maintain an action for waste committed
before he aliened the same.
Sec. 812. ACTION FOR WASTE BY WARD AGAINST GUARDIAN.
Such an action may also be maintained against a guardian by his
ward, either before or after the termination of the guardianship,
for waste committed upon the real property of the ward during the
guardianship.
Sec. 813. ACTION FOR WASTE BY GRANTEE OF REAL PROPERTY SOLD UNDER
EXECUTION.
Where real property is sold by virtue of an execution, the person
to whom a conveyance is executed pursuant to the sale may
maintain an action for waste, committed thereon after the sale,
against the person who was then in possession of the property.
Sec. 815. JUDGMENT IN ACTION FOR WASTE AGAINST TENANT OF
PARTICULAR ESTATE.
If the plaintiff recovers in an action for waste, other than an
action brought as prescribed in section 817, the final judgment
must award to him compensatory damages. Where the action is
brought by the person next entitled to the reversion and it
appears, in like manner, that the injury to the estate in
reversion is equal to the value of the tenant's estate or
unexpired term, the final judgment must also award to the
plaintiff the forfeiture of the defendant's estate and the
possession of the place wasted.
Sec. 817. ACTION FOR WASTE AGAINST JOINT TENANT OR TENANT IN
COMMON.
1. An action for waste may also be maintained by a joint tenant
or tenant in common against his co-tenant who commits waste
upon the real property held in joint tenancy or in common.
If the plaintiff recovers therein he is entitled, at his
election, either to a final judgment for compensatory
damages or to have partition of the property as prescribed
in subdivisions 2 and 3 of this section.
2. Where the plaintiff elects to have partition, if the
pleadings, verdict, report, or decision do not determine the
rights and interests of the several parties in the property
so held in joint tenancy or in common, the court must
ascertain them, by a reference or otherwise. If it appears
that there are persons, not parties to the action, who must
have been made parties to an action for partition of the
property, they must be brought in by supplemental summons
and, if necessary, supplemental pleadings must be made. When
the rights and interests of all the parties are ascertained,
an interlocutory judgment for the partition or sale of the
property must be rendered and the subsequent proceedings
therein must be the same as in an action for partition,
except as otherwise prescribed in subdivision 3.
3. The plaintiff may elect to take final judgment for the
damages awarded to him, or that, in making the partition, or
in dividing the proceeds of a sale, so much of the share of
the defendant in the real property, or the proceeds thereof,
as will be sufficient to compensate the plaintiff for his
damages, and the costs of the action, other than the
expenses of making the partition or sale, be laid off or
paid, as the case may be, to the plaintiff. The residue of
the property or proceeds, not laid off or distributed to the
plaintiff or the defendant, must be laid off or paid to the
persons entitled thereto, according to their respective
rights and interests.
Sec. 821. VIEW IN ACTION FOR WASTE.
In an action for waste it is not necessary, either upon the
execution of a writ of inquiry or upon the trial of an issue of
fact, that the jury, the judge, or the referee should view the
property. Where the trial is by a referee, or by the court
without a jury, the referee or the judge may, in his discretion,
view the property and direct the attorneys for the parties to
attend accordingly. In any other case, the court may in its
discretion, by order direct a view by the jury.
Sec. 831. ACTION BY REVERSIONER OR REMAINDERMAN.
A person seized of an estate in remainder or reversion may
maintain an action founded upon an injury done to the
inheritance, notwithstanding any intervening estate for life or
for years.
Sec. 833. RECOVERY OF FEE DAMAGES BY THE OWNER OF A POSSESSORY
ESTATE FOR LIFE OR FOR YEARS.
When the ownership of land is divided into a possessory estate
for life or for years and one or more future interests, and a
person having none of these interests causes damage to such land,
the damages recoverable by the owner of such possessory interest
from the wrongdoing third person may include damages caused to
interests in the affected land other than those owned by parties
to the action or proceeding when, but only when, all living
persons who have either a possessory or a future interest in the
affected land are parties thereto. The court in which any such
recovery of damages occurs shall make such direction for the
distribution of the damages recovered among the persons who are
parties to the action or proceeding and for the protection of the
interests of persons who are not parties thereto, as justice may
require.
A tenant for life or for years in the land damaged is entitled to
receive from the recovery, in satisfaction of the damage to his
estate or interest, either a sum in gross or the earnings of a
sum invested for his benefit. The determination as to whether a
sum in gross or the earnings of a sum invested shall be awarded
to the owner of such particular estate shall be governed by the
provisions with respect to the proceeds of a sale in partition.
Sec. 841. ACTION FOR NUISANCE.
An action for a nuisance may be maintained in any case where such
an action might have been maintained under the laws in force
immediately before the taking effect of article seventh of title
one of chapter fourteenth of the code of civil procedure as added
thereto by chapter one hundred seventy-eight of the laws of
eighteen hundred eighty.
A person by whom the nuisance has been erected and a person to
whom the real property has been transferred may be joined as
defendants in such an action. A final judgment in favor of the
plaintiff may award him damages or direct the removal of the
nuisance or both. This section does not affect an action wherein
the complaint demands judgment for a sum of money only.
Sec. 843. FENCES AND STRUCTURES, WHEN PRIVATE NUISANCE.
Whenever the owner or lessees of land shall erect or shall have
erected thereon any fence or structure in the nature of a fence
which shall exceed ten feet in height, to exclude the owner or
occupant of a structure on adjoining land from the enjoyment of
light or air, the owner or occupant who shall thereby be deprived
of light or air shall be entitled to maintain an action in the
supreme court to have such fence or structure adjudged a private
nuisance. If it shall be so adjudged its continued maintenance
may be enjoined. This section shall not preclude the owner or
lessee of land from improving the same by the erection of any
structure thereon in good faith.
Sec. 851. ACTION AGAINST CERTAIN PERSONS HOLDING OVER AS
TRESPASSERS.
A person in possession of real property as guardian or trustee
for an infant, or having an estate determinable upon one or more
lives, who holds over and continues in possession after the
determination of his trust or particular estate, without the
express consent of the person then immediately entitled, is a
trespasser. An action may be maintained against him or his
executor or administrator, by the person so entitled, or his
executor or administrator, to recover the full value of the
profits received during the wrongful occupation.
Sec. 853. ACTION FOR FORCIBLE OR UNLAWFUL ENTRY OR DETAINER;
TREBLE DAMAGES.
If a person is disseized, ejected, or put out of real property in
a forcible or unlawful manner, or, after he has been put out, is
held and kept out by force or by putting him in fear of personal
violence or by unlawful means, he is entitled to recover treble
damages in an action therefor against the wrong-doer.
Sec. 861. ACTION FOR CUTTING OR CARRYING OFF TREES OR TIMBER;
WHEN TREBLE DAMAGES MAY BE RECOVERED.
1. If any person cuts down or carries off any wood, underwood,
tree or timber, or girdles or otherwise despoils a tree on
the land of another, without the owner's leave, or on the
common or other land of a city, village or town, without
having right or privilege in those lands or license from the
proper officer, an action may be maintained against him by
the owner, or the city, village or town, as the case may be.
2. In an action brought as provided in this section, the
plaintiff may state in his complaint the amount of his
damages and demand judgment for treble the sum so stated.
Thereupon, if the inquisition or, where issues of fact are
tried, the verdict, report or decision, awards him any
damages, he is entitled to judgment for treble the sum so
awarded, except that in either of the following cases
judgment must be rendered for single damages only:
a. Where the verdict, report, or decision finds
affirmatively that the injury, for which the action was
brought, was casual and involuntary, or that the
defendant, when he committed the injury, had probable
cause to believe that the land was his own;
b. Where the defendant has pleaded, and the verdict,
report, or decision finds affirmatively, that the
injury for which the action was brought was committed
by taking timber for the purpose of making or repairing
a public road, or a public bridge, or by taking any
wood, underwood, or tree, for a like purpose, by
authority of a town officer having charge of such
construction or repairs.
Sec. 871. ACTION FOR THE REMOVAL OF ENCROACHING STRUCTURES.
1. An action may be maintained by the owner of any legal estate
in land for an injunction directing the removal of a
structure encroaching on such land. Nothing herein contained
shall be construed as limiting the power of the court in
such an action to award damages in an appropriate case in
lieu of an injunction or to render such other judgment as
the facts may justify.
2. This section shall not be deemed to repeal or modify any
existing statute or local law relating to encroaching
structures.
Sec. 881. ACCESS TO ADJOINING PROPERTY TO MAKE IMPROVEMENTS OR
REPAIRS.
When an owner or lessee seeks to make improvements or repairs to
real property so situated that such improvements or repairs
cannot be made by the owner or lessee without entering the
premises of an adjoining owner or his lessee, and permission so
to enter has been refused, the owner or lessee seeking to make
such improvements or repairs may commence a special proceeding
for a license so to enter pursuant to article four of the civil
practice law and rules. The petition and affidavits, if any,
shall state the facts making such entry necessary and the date or
dates on which entry is sought. Such license shall be granted by
the court in an appropriate case upon such terms as justice
requires. The licensee shall be liable to the adjoining owner or
his lessee for actual damages occurring as a result of the entry.
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ARTICLE 9
ACTION FOR PARTITION
Section 901. By whom maintainable.
903. Necessary defendants.
904. Permissible defendants.
905. Complaint.
907. Trial of title or interest.
911. Ascertainment of rights of parties
before interlocutory judgment on default or
admission or where party is an infant,
absentee or unknown defendant.
913. Inquiry as to creditors.
915. Interlocutory judgment.
916. Interlocutory judgment directing partial
partition.
917. Interlocutory judgment directing
partition in common.
918. Interlocutory judgment directing sale or
exception of lien or dower interest.
919. Interlocutory judgment directing credit
on sale.
921. Actual partition.
922. Meeting of commissioners; report of
actual partition; confirming or setting aside
report.
923. Security for credit on sale.
925. Report of sale; confirmation.
927. Contents of judgment after actual partition.
928. Effect of judgment after actual partition.
929. Lien of creditor upon share partitioned.
931. Contents of judgment after sale.
933. Effect of judgment after sale.
941. Judgment as to parties having interest
in entire property.
943. Judgment directing compensation to
equalize partition.
945. Judgment adjusting rents and profits.
947. Judgment affecting state tax claim.
951. Recording of judgment.
961. Disposition of proceeds of sale.
962. Payment of proceeds into court where
there are liens.
963. Payment of proceeds out of court where
there are liens.
964. Payment of proceeds into court in cases
involving decedent's property.
965. Payment of proceeds out of court in
cases involving decedent's property.
966. Payment of proceeds directly to parties
in cases involving decedent's property.
967. Payment of proceeds to owner of
particular or future estate.
968. Manner of payment of proceeds to owner
of particular or future estate.
969. Shares of infant, incompetent or conservatee.
970. Shares of unknown or absent owner.
971. Security for refund.
973. Report of disposition of proceeds.
981. Costs and expenses.
991. Proceeding for share of unknown heirs;
presumption of death; service.
992. Judgment in proceeding for share of
unknown heirs.
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Sec. 901. BY WHOM MAINTAINABLE.
1. A person holding and in possession of real property as joint
tenant or tenant in common, in which he has an estate of
inheritance, or for life, or for years, may maintain an
action for the partition of the property, and for a sale if
it appears that a partition cannot be made without great
prejudice to the owners.
2. A person holding a future estate as defined in sections
forty, forty-a or forty-b of the real property law or a
reversion as joint tenant or tenant in common may maintain
an action for the partition of the real property to which it
attaches, according to his respective share, subject to the
interest of the person holding the particular estate, but no
sale of the premises in such an action shall be made except
with the consent in writing, to be acknowledged or proved
and certified in like manner as a deed to be recorded, of
the person owning and holding such particular estate. If
partition or sale cannot be made without great prejudice to
the owners, the complaint shall be dismissed; dismissal
shall not affect the right of any party to bring a new
action after the determination of such particular estate.
3. A person entitled as a joint tenant or a tenant in common by
reason of his being an heir of a person who died holding and
in possession of real property, may maintain an action for
partition, whether he is in or out of possession,
notwithstanding an apparent devise to another by the
decedent, and possession under such a devise. The plaintiff
shall establish that the apparent devise is void.
4. In the event the estate of a decedent is the owner of an
estate in common in real property, the executor or
administrator may bring a partition action or intervene in a
pending partition action on behalf of the estate if, upon
application duly made, the surrogate approves.
Sec. 903. NECESSARY DEFENDANTS.
Each of the following persons shall be made a party to the
action:
1. Every person having an undivided share, in possession or
otherwise, in the property, as tenant in fee, for life, by
the curtesy or for years;
2. Every person entitled to the reversion, remainder or
inheritance of an undivided share, after the determination
of a particular estate therein;
3. Every person who, by any contingency, is or may become
entitled to a beneficial interest in an undivided share in
the property, provided that where a future estate or
interest is limited in any contingency to the persons who
shall compose a certain class upon the happening of a future
event, it shall be sufficient to make parties to the action
the persons who would have been entitled to such estate or
interest if such event had happened immediately before the
commencement of the action;
4. Every person having an inchoate right of dower in an
undivided share in the property;
5. Every person having a right of dower in the property, or any
part thereof, which has not been admeasured; and
6. An executor or administrator, where letters testamentary or
of administration have been issued on the estate of the
decedent from whom the plaintiff's title to the real
property is derived, and the action is brought within
eighteen months after such letters were issued; or where the
person of whose estate the executor or administrator has
been appointed should, if living, be a party to the action.
If no executor or administrator has been appointed for the
estate of such a person, that fact must be stated in the
complaint.
Sec. 904. PERMISSIBLE DEFENDANTS.
The plaintiff, at his election, may make defendant in the action:
1. A tenant by the curtesy or for life or for years, of the
entire property, or whoever may be entitled to a contingent
or vested remainder or reversion in the entire property, or
a person having a lien or interest which attaches to the
entire property. A person specified in this subdivision who
is not made a party is not affected by the judgment in the
action.
2. A person having a lien on an undivided share or interest in
the property. The nature of the lien and the share or
interest to which it attaches shall be specified.
3. An unknown person entitled to an estate or interest in the
property sold. The court shall provide for the protection of
his rights, as far as may be, as if he were known and had
appeared.
4. The state.
Sec. 905. COMPLAINT.
The complaint shall describe the property with reasonable
certainty, specify the rights, shares and interests therein of
each of the parties, as far as the same are known to the
plaintiff, and contain any other allegation required by statute.
If a party, or the share, right or interest of a party, be
unknown to the plaintiff; or if a share, right or interest be
uncertain or contingent; or if the ownership of the inheritance
depend upon an executory devise; or if a remainder be contingent,
so that the party cannot be named; such facts shall be stated in
the complaint. The complaint shall state whether the parties own
any other lands in common.
Sec. 907. TRIAL OF TITLE OR INTEREST.
1. The title or interest of any party in the property may be
put in issue. When any defendant, not a tenant in common or
joint tenant with plaintiff, puts in issue title or
interest, all subsequent proceedings as to such defendant,
including the trial, judgment and execution, shall be the
same as if it were an action to recover real property.
2. An issue of fact joined in the action is triable by a jury.
Sec. 911. ASCERTAINMENT OF RIGHTS OF PARTIES BEFORE INTERLOCUTORY
JUDGMENT ON DEFAULT OR ADMISSION OR WHERE PARTY IS AN
INFANT, ABSENTEE OR UNKNOWN DEFENDANT.
If a defendant has made default in appearing or pleading, or the
rights of the parties are not controverted, or a party be an
infant, absentee or unknown, the court shall ascertain the
rights, shares and interests of the several parties in the
property, by a reference or otherwise, before interlocutory
judgment is rendered.
Sec. 913. INQUIRY AS TO CREDITORS.
1. Before an interlocutory judgment for the sale of real
property is rendered the court shall ascertain, by reference
or otherwise, whether there is any creditor not a party who
has a lien on the undivided share or interest of any party.
A search certified by the clerk or by the clerk and register
of the county where the property is situated that there is
no such outstanding lien is sufficient proof of the absence
of such creditor.
2. Where a reference is directed, the referee shall cause a
notice to be published once in each week for four successive
weeks in such newspaper published in the county wherein the
place of trial is designated as shall be designated by the
court directing said reference, and also, where the court so
directs, in a newspaper published in each county wherein the
property is situated, requiring each person not a party to
the action who, at the date of the order, had a lien upon
any undivided share or interest in the property, to appear
before the referee at a specified place and on or before a
specified day to prove his lien and the true amount due or
to become due to him by reason thereof. The referee shall
report to the court with all convenient speed the name of
each creditor whose lien is satisfactorily proved before
him, the nature and extent of the lien, the date thereof and
the amount due or to become due thereupon.
Sec. 915. INTERLOCUTORY JUDGMENT.
The interlocutory judgment shall determine the right, share or
interest of each party in the property, as far as the same has
been ascertained. Where the property or any part thereof is so
circumstanced that a partition thereof cannot be made without
great prejudice to the owners, the interlocutory judgment, except
as otherwise expressly prescribed in this article, shall direct
that the property or the part so circumstanced be sold at public
auction. Otherwise, an interlocutory judgment in favor of the
plaintiff shall direct that partition be made between the parties
according to their respective rights, shares and interests and
shall designate three reputable and disinterested freeholders as
commissioners to make the partition so directed.
Sec. 916. INTERLOCUTORY JUDGMENT DIRECTING PARTIAL PARTITION.
Where the right, share and interest of a party has been
ascertained, and the rights, shares or interests of the other
parties as between themselves remain unascertained, an
interlocutory judgment for a partition shall direct a partition
as between the party whose share has been so determined and the
other parties to the action. Where the rights, shares and
interests of two or more parties have been thus ascertained and
determined, the interlocutory judgment may also direct the
partition among them of a part of the property proportionate to
their aggregate shares. In either case, the court, from time to
time, as the other rights, shares and interests are ascertained,
may render an interlocutory judgment directing the partition, in
like manner, of the remainder of the property. Where an
interlocutory judgment is rendered in a case specified in this
section, the court may direct the action to be severed, and final
judgment to be rendered with respect to the portion of the
property set apart to the parties whose rights, shares and
interests are determined, leaving the action to proceed as
against the other parties with respect to the remainder of the
property; and if necessary, the court may direct that one of
those parties be substituted as plaintiff.
Sec. 917. INTERLOCUTORY JUDGMENT DIRECTING PARTITION IN COMMON.
Where two or more parties desire to enjoy their shares in common
with each other, the interlocutory judgment may direct partition
to be so made as to set off to them their shares of the real
property partitioned, without partition as between themselves, to
be held by them in common.
Sec. 918. INTERLOCUTORY JUDGMENT DIRECTING SALE OR EXCEPTION OF
LIEN OR DOWER INTEREST.
1. An interlocutory judgment directing the sale of the property
may direct that the premises sold shall be free from the
lien of every debt of a decedent, from whom the plaintiff's
title is derived, or of a decedent who, if living, should be
a party to the action, except debts which were a lien upon
the premises before the death of such decedent.
2. Where a party has an existing right of dower in the entire
property directed to be sold, at the time when an
interlocutory judgment for a sale is rendered in an action
for partition, the court shall determine whether the
interests of all the parties require that the right of dower
should be excepted from the sale or that it should be sold.
If a sale of the property, including the right of dower, is
directed, the interest of the party entitled to the right of
dower shall pass thereby; and the purchaser, his heirs and
assigns, shall hold the property free and discharged from
any claim by virtue of that right.
Sec. 919. INTERLOCUTORY JUDGMENT DIRECTING CREDIT ON SALE.
The court, in the interlocutory judgment for a sale, shall direct
the terms of credit which may be allowed for any portion of the
purchase-money.
Sec. 921. ACTUAL PARTITION.
1. The commissioners designated by the interlocutory judgment
shall forthwith proceed to make partition as directed by
such judgment, unless it appears to them that partition
thereof, or of a particular lot, tract or other portion
thereof, cannot be made without great prejudice to the
owners; in which case, they shall make a written report of
that fact to the court.
2. The commissioners shall divide the property into distinct
parcels and allot the several parcels to the respective
parties, quality and quantity being relatively considered,
according to the respective rights and interest of the
parties as fixed by the interlocutory judgment. They shall
designate the several parcels by suitable monuments. They
may employ a surveyor, with the necessary assistants, to aid
them.
3. Where a party has a right of dower in the property, or a
part thereof, which has not been admeasured, or has an
estate by the curtesy or for life or for years in an
undivided share of the property, the commissioners may allot
to that party his share without reference to the duration of
the estate. They may make partition of the share so allotted
to that party, among the parties who are entitled to the
remainder or reversion thereof, to be enjoyed by them upon
the determination of the particular estate, where, in the
opinion of the commissioners, such a partition can be made
without prejudice to the rights of the parties.
Sec. 922. MEETING OF COMMISSIONERS; REPORT OF ACTUAL PARTITION;
CONFIRMING OR SETTING ASIDE REPORT.
1. All the commissioners shall meet together in the performance
of any of their duties, but the acts of a majority so met
are valid. They shall make a full report of their
proceedings, under their hands, specifying therein the
manner in which they have discharged their trust, describing
the property divided and the share or interest in a share
allotted to each party, with the quantity, courses and
distances or other particular description of each share, and
a description of the monuments; and specifying the items of
their charges. Their report shall be acknowledged or proved,
and certified, in like manner as a deed to be recorded, and
shall be filed in the office of the clerk.
2. The court shall confirm or set aside the report, and, if
necessary, may appoint new commissioners.
3. If the commissioners report that the property, or a
particular lot, tract or other portion thereof is so
circumstanced that a partition thereof cannot be made
without great prejudice to the owners, the court may render
a supplemental interlocutory judgment reciting the facts and
directing that the property or the distinct parcel so
circumstanced be sold.
Sec. 923. SECURITY FOR CREDIT ON SALE.
The portion of the purchase-money for which credit is allowed in
the interlocutory judgment shall be secured at interest by a
mortgage upon the property sold, with a bond of the purchaser;
and by such additional security, if any, as the court prescribes.
The officer making the sale may take separate mortgages and other
securities in the name of the county treasurer of the county in
which the property is situated for such convenient portions of
the purchase-money as are directed by the court to be invested;
and in the name of the owner, for the share of any known owner of
full age who desires to have it invested.
Sec. 925. REPORT OF SALE; CONFIRMATION.
1. Immediately after completing the sale, the officer making it
shall file with the clerk his report thereof under oath,
containing a description of each parcel sold, the name of
the purchaser and the price.
2. The court shall confirm or set aside the report.
Sec. 927. CONTENTS OF JUDGMENT AFTER ACTUAL PARTITION.
Upon the confirmation by the court of the report of the
commissioners making partition, final judgment shall be entered
directing that each of the parties who is entitled to possession
of a distinct parcel allotted to him, be let into the possession
thereof, either immediately, or after the determination of the
particular estate, as the case requires.
Sec. 928. EFFECT OF JUDGMENT AFTER ACTUAL PARTITION.
A final judgment after actual partition is binding and conclusive
upon the following persons, except parties and persons claiming
under them whose rights and interests are expressly left
unaffected:
1. The plaintiff; each defendant upon whom the summons was
served, either personally or without the state or by
publication; and his legal representatives.
2. Each person claiming from, through or under such a party, by
title accruing after the filing of the judgment-roll, or
after the filing in the proper county clerk's office of a
notice of the pendency of the action.
3. Each person not in being when the interlocutory judgment is
rendered who, by the happening of any contingency becomes
afterwards entitled to a beneficial interest attaching to,
or an estate or interest in, a portion of the property, the
person first entitled to which, or other virtual
representative whereof, was a party specified in the first
subdivision of this section.
Sec. 929. LIEN OF CREDITOR UPON SHARE PARTITIONED.
After actual partition the lien of a creditor having a lien on an
undivided share or interest in the property, who is or is not
made a party, shall attach only to the share or interest assigned
to the party upon whose share or interest the lien attached;
which shall be first charged with its just proportion of the
costs and expenses of the action, in preference to the lien.
Sec. 931. CONTENTS OF JUDGMENT AFTER SALE.
A final judgment confirming a sale shall direct the officer
making it to execute the proper conveyances and take the proper
securities pursuant to the sale, and also direct application of
the proceeds.
Sec. 933. EFFECT OF JUDGMENT AFTER SALE.
A final judgment after sale is binding and conclusive upon the
same persons upon whom a final judgment for actual partition is
binding and conclusive; and it bars each of those persons who is
not a purchaser at the sale from all right, title and interest in
the property sold. It is also a bar against each person not a
party who, at the time when it is entered, has a general lien by
judgment or decree on the undivided share or interest of a party,
if notice was given to appear before the referee and make proof
of liens, as prescribed in this article, and also against each
person made a party who then has a specific lien on any such
undivided share or interest; but a person having any such
specific lien appearing of record at the time of the filing of
the notice of the pendency of the action, who is not made a
party, is not affected by such judgment.
Sec. 941. JUDGMENT AS TO PARTIES HAVING INTEREST IN ENTIRE
PROPERTY.
If a tenant by the curtesy or for life or for years of the entire
property, or a person entitled to a contingent or vested
remainder or reversion in the entire property, or a creditor, or
other person, having a lien or interest which attaches to the
entire property, be made a defendant in the action, the final
judgment either may award to such a party his entire right and
interest, or the proceeds thereof, or where the right or interest
is contingent, direct that the proceeds or share thereof be
substituted for the property and invested for whoever may
eventually be entitled thereto, or may reserve and leave
unaffected his right and interest, or any portion thereof.
Sec. 943. JUDGMENT DIRECTING COMPENSATION TO EQUALIZE PARTITION.
Where it appears that partition cannot be made equal between the
parties according to their respective rights without prejudice to
the rights or interests of some of them, the final judgment may
award compensation to be made by one party to another for
equality of partition. But compensation cannot be so awarded
against a party who is unknown or whose name is unknown. Nor can
it be awarded against an infant unless it appears that he has
personal property sufficient to pay it and that his interests
will be promoted thereby.
Sec. 945. JUDGMENT ADJUSTING RENTS AND PROFITS.
The court may adjust the rights of a party as against any other
party by reason of the receipt by the latter of more than his
proper proportion of the rents or profits of a share.
Sec. 947. JUDGMENT AFFECTING STATE TAX CLAIM.
A judgment affecting adversely the title, interest or claim of
the state based upon a tax deed, shall provide in effect as
follows:
1. That the state shall have a lien upon such real property or
part thereof described in such tax deed, prior and superior
to all other liens, (a) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was sold or liable to be sold in the first instance
and for which such tax deed was issued, together with fees,
charges and interest; (b) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was subsequently sold or liable to be sold,
together with fees, charges and interest; (c) for the amount
of all taxes, fees and charges admitted or paid by the state
upon such real property to the date of the entry of such
judgment, together with interest thereon from the date of
such admission or payment. In the determination of the
amount of such lien, establishment of payments of taxes on
said land by the adjudged or admitted owner of the property
during any of the same years in which payments were also
made by the state shall reduce the lien of the state by the
larger of the two tax payments for each of the years
affected by duplicate payments, and in the event that wholly
identical areas are not affected by the duplicate payments
the court shall have power to apportion and adjust the
amount of the lien as equity may require.
2. That the state may foreclose such lien as a mortgage on real
property is foreclosed, provided such lien remains unpaid
after the expiration of one year from the entry of such
judgment.
The remedy provided by this section for recovery of tax
payments shall be in addition to any other remedy now or
hereafter available in law or in equity.
Sec. 951. RECORDING OF JUDGMENT.
A copy, which is certified as correct, of the final judgment may
be recorded in the office for recording deeds in each county in
which any real property affected is situated.
Sec. 961. DISPOSITION OF PROCEEDS OF SALE.
The proceeds of a sale, after deducting the costs and expenses
chargeable against them shall be immediately awarded as directed
by the final judgment, to the parties whose rights and interests
have been sold, in proportion thereto. The sum chargeable upon
any share to satisfy a lien thereon shall be paid to the
creditor, or retained, subject to the order of the court; and the
remainder except as otherwise prescribed in this article, shall
be paid by the officer making the sale, to the party owning the
share or his legal representatives or into court for his use. The
proceedings to ascertain and settle the liens upon an undivided
share shall not affect any other party to the action or delay the
paying over or investing of money to or for the benefit of any
other party upon whose share or interest in the property there
does not appear to be any existing lien.
Sec. 962. PAYMENT OF PROCEEDS INTO COURT WHERE THERE ARE LIENS.
If there is any existing lien upon the share or interest of a
party in the property, the interlocutory judgment directing the
sale shall direct the officer making it to pay into court the
portion of the money arising from the sale of the share or
interest of that party after deducting the portion of the costs
and expenses for which it is liable.
Sec. 963. PAYMENT OF PROCEEDS OUT OF COURT WHERE THERE ARE LIENS.
1. Where the proceeds of a sale are paid into court, in a case
specified in section 962, the party may apply to the court
for an order directing that the money, or such part as he
claims, be paid to him, and the court shall make such an
order as justice requires. The party shall by affidavit show
the amount actually due on each incumbrance, and the name
and residence of the owner of the incumbrance, as far as
they are known or can be ascertained with due diligence, and
showing service of a notice of the application on each owner
of an incumbrance. Service of the notice within the state
shall be personal, or by leaving it at the owner's residence
with some person of suitable age and discretion, at least
fourteen days previous to the application. Service without
the state, if personal, shall be made at least twenty days
previous to the application. If the owner of the incumbrance
resides without the state, and the place of his abode cannot
be ascertained with reasonable diligence, notice may be
served on him by publishing it in such newspaper or
newspapers as the court may direct, once in each week for
the four weeks immediately preceding the application.
2. When the whole amount of the unsatisfied liens upon an
undivided share has been ascertained, the court shall order
the portion of the money so paid into court on account of
that share to be distributed among the creditors having the
liens, according to the priority of each of them. Where the
incumbrancer is not a party to the action, the clerk or
other officer by whom a lien is paid off shall procure
satisfaction to be acknowledged or proved, as required by
law, and shall cause the incumbrance to be duly satisfied or
cancelled of record. The expense of so doing shall be paid
out of the portion of the money in court belonging to the
party by whom the incumbrance was payable.
Sec. 964. PAYMENT OF PROCEEDS INTO COURT IN CASES INVOLVING
DECEDENT'S PROPERTY.
Where the property has been sold free from the lien of debts, a
final judgment, entered before eighteen months have elapsed from
the granting of letters of administration or letters testamentary
upon the estate of a decedent from whom the plaintiff derived his
title, shall direct that the proceeds of the sale remaining after
the payment of the costs, referee's fees, expenses of sale, and
liens established before the death of the decedent, including any
sum allowed to a widow in satisfaction of her right of dower,
therein directed to be paid, be paid forthwith into court by the
referee making such sale.
A final judgment in such case, entered before eighteen months
have elapsed from the granting of letters of administration or
letters testamentary upon the estate of a deceased person, who,
if living, should be a party to the action, shall direct that the
share of the proceeds of such sale, which would have been his, if
living, be paid into court by such referee.
Sec. 965. PAYMENT OF PROCEEDS OUT OF COURT IN CASES INVOLVING
DECEDENT'S PROPERTY.
Money paid into court under section 964 may be paid out of court
to such parties as are entitled thereto by order of the court
made upon motion of any party, and upon:
1. Notice of motion to the executors or administrators of the
decedent and the furnishing of an undertaking that the
moving party will pay any and all claims, not exceeding the
amount paid into court, when required by order of the court
or by order of the surrogate of the surrogate's court in a
proceeding to mortgage, lease or sell the real property of
such decedent; except that where a final accounting has been
had in the estate of such decedent in a surrogate's court,
and certified copies of the account and decree of final
settlement, showing that all of the debts of the decedent
have been paid in full, is filed with the court having
jurisdiction of the fund, the court may dispense with the
furnishing of an undertaking; or
2. The furnishing of the certificate of the surrogate of the
county of which any such decedent was a resident at the time
of his death, showing that eighteen months have elapsed
since the issuing of letters testamentary or letters of
administration, as the case may be, upon the estate of said
decedent, and that no proceedings for the mortgage, lease or
sale of the real property of such decedent for the payment
of his debts or funeral expenses, or both, is pending, and
the certificate of the county clerk of the county where the
real property sold under the interlocutory judgment is
located, showing that no notice of pendency of action in
respect to such real property has been filed in his office.
The certificate of the surrogate required herein may be
executed in the name of the surrogate by the clerk of the
surrogate's court under the seal of the court.
Sec. 966. PAYMENT OF PROCEEDS DIRECTLY TO PARTIES IN CASES
INVOLVING DECEDENT'S PROPERTY.
Where the property has been sold free from the lien of debts and
the court is furnished with the certificates described in
subdivision 2 of section 965, the final judgment shall direct
payment of the proceeds of sale to such parties as are entitled
thereto.
Sec. 967. PAYMENT OF PROCEEDS TO OWNER OF PARTICULAR OR FUTURE
ESTATE.
A party who has a right of dower, or is a tenant for life or for
years, in or of an undivided share of the property sold, or has
an inchoate right of dower or any other future right or estate,
vested or contingent, or any person not in being who by any
contingency may become entitled to any interest or estate in the
property sold, is entitled to have a proportion of the proceeds
of the sale invested, secured or paid over, in such manner as the
court deems calculated to protect the rights and interests of the
parties.
Sec. 968. MANNER OF PAYMENT OF PROCEEDS TO OWNER OF PARTICULAR OR
FUTURE ESTATE.
Whenever the whole or a part of the proceeds of a sale represents
the interest of a particular estate, and also represents one or
more other interests subsequent thereto, the power to determine
whether the owner of the particular estate shall receive, in
satisfaction of his estate or interest, a sum in gross or shall
receive the earnings, as they accrue, of a sum invested for his
benefit in permanent securities at interest, rests in the
discretion of the court, except that if all parties affected
shall have agreed either to the payment of a sum in gross or the
investment of the proceeds the court shall, by order, give effect
to such agreement. The application of the owner of any such
particular estate for the award of a sum in gross shall be
granted unless the court finds that unreasonable hardship is
likely to be caused thereby to the owner of some other interest
in the affected real property. The application for the award of a
sum in gross by the owner of some interest in the affected real
property other than the owner of the particular estate shall be
granted if the court finds that the granting of such application
is equitable under the circumstances.
Sec. 969. SHARES OF INFANT, INCOMPETENT OR CONSERVATEE.
Where a party entitled to receive a portion of the proceeds of
sale is an infant, incompetent or conservatee, such portion may
be disposed of as follows:
1. The court may direct it to be invested in permanent
securities in the name and for the benefit of the infant,
incompetent or conservatee, or it may direct it to be paid
over to the general guardian of the infant, committee of the
incompetent or conservator of the conservatee, when the
guardian, committee conservator shall have executed an
undertaking to such infant, incompetent or conservatee; or,
2. Where a general guardian, committee or conservator has been
appointed, upon proof that it will be for the best interest
and advantage of the estate of such infant, incompetent or
conservatee person, the court may authorize and direct such
guardian, committee or conservator, in the name of such
infant, incompetent person or conservatee, to make
application for an award of a sum in gross as provided in
section 968; or,
3. If any of the moneys arising from the proceeds of such sale
shall have been paid to the county treasurer, and on due
proof that such money has remained uninvested in permanent
securities for the space of three months, the court may
direct the same to be paid to the general guardian,
committee or conservator of such infant, incompetent or
conservatee upon his giving an undertaking for the faithful
execution of his trust; where said sum in hands of county
treasurer does not exceed the sum of one thousand dollars
the court may direct the same to be paid in accordance with
subdivision five of this section; or,
4. In the case of an infant, incompetent or conservatee
residing without the state and having in the state or
country where he or she resides a general guardian,
committee or conservator, or person duly appointed under the
laws of such state or country to the control, and entitled
by the laws of such state or country to the custody, of the
money of such infant, incompetent or conservatee, the court,
upon satisfactory proof of such facts and of the sufficiency
of the undertaking given by such general guardian, committee
or conservator or person in such state or country by the
certificate of a judge of a court of record of such state or
country, or otherwise, may direct that the portion of such
infant, incompetent or conservatee arising upon such sale
shall be paid over to such general guardian, committee or
conservator or person; or,
5. If the portion of the proceeds arising upon such sale which
belongs to an infant, incompetent or conservatee residing
within or without the state does not exceed one thousand
dollars, the court may direct that the same may be paid to
his father, or to his mother or to some competent person
with whom the infant, incompetent or conservatee resides, or
who has some interest in his welfare, for the use and
benefit of such infant, incompetent or conservatee.
Sec. 970. SHARES OF UNKNOWN OR ABSENT OWNER.
Where a person has been made a defendant as an unknown person, or
where the name of a defendant is unknown, or where the summons
has been served upon a defendant without the state or by
publication, and he has not appeared in the action, the court
shall direct his portion to be paid into court and invested in
permanent securities at interest, for his benefit, until claimed
by him or his legal representatives.
Sec. 971. SECURITY FOR REFUND.
The court, in its discretion, may require any person, before he
receives his portion of the proceeds of the sale to give such
security as it directs, to the state, or the county treasurer,
who shall hold it for the use and benefit of the persons
interested, or to such parties or other persons as it prescribes,
to refund the same, or a portion thereof, with interest, if it
thereafter appears that he was not entitled thereto.
Sec. 973. REPORT OF DISPOSITION OF PROCEEDS.
Within sixty days after the entry of final judgment, unless such
time be extended by an order of the court entered in the office
of the clerk within said sixty days, the officer making the sale
shall file with the clerk his report under oath of the
disposition of the proceeds of the sale, accompanied by the
vouchers of the persons to whom payments were ordered to be made.
Sec. 981. COSTS AND EXPENSES.
1. The final judgment for the partition of the property must
also award that each defendant pay to the plaintiff his
proportion of the plaintiff's costs, including the
additional allowance. The sum to be paid by each must be
fixed by the court according to the respective rights of the
parties, and specified in the judgment.
2. If a defendant is unknown, his proportion of the costs shall
be fixed and specified in like manner. An execution against
an unknown defendant may be issued to collect the costs
awarded against him as if he were named in the judgment; and
his right, share or interest in the property may be sold by
virtue thereof as if he were named in the execution.
3. Where final judgment confirming a sale is rendered, the
costs of each party to the action and the expenses of the
sale, including the officer's fees, shall be deducted from
the proceeds of the sale and distributed as the court shall
order. But the court, in its discretion, may direct that the
costs and expenses of any trial, reference or other
proceeding in the action be paid out of the share of any
party in the proceeds, or may render judgment against any
party therefor. Where a proportion of the proceeds is to be
paid to or invested for the benefit of any person, as
prescribed in any provision of this article, the amount
thereof must be determined by the residue of the entire
proceeds remaining after deducting the costs and expenses
chargeable against them.
4. The officer making the sale shall pay out of the proceeds,
unless the judgment otherwise directs, all taxes,
assessments and water rates, which are liens upon the
property sold, and redeem the property sold from any sales
for unpaid taxes, assessments or water rates, which have not
apparently become absolute. The sums necessary to make those
payments and redemptions are deemed expenses of the sale.
5. After actual partition, the fees and expenses of the
commissioners, including the expense of a survey when it is
made, shall be taxed under the direction of the court, and
the amount thereof shall be paid by the plaintiff and
allowed as part of his costs.
6. Fees of surveyor or commissioner in action for partition.
The fees of a surveyor and a surveyor's assistant, employed
as prescribed by law in an action for partition, and of a
commissioner appointed as prescribed by law to make
partition, shall be the same as those provided by section
1052 of this chapter for services rendered in an action for
dower.
Sec. 991. PROCEEDING FOR SHARE OF UNKNOWN HEIRS; PRESUMPTION OF
DEATH; SERVICE.
1. Where a portion of the proceeds of the sale is paid into
court for unknown heirs and is unclaimed by any person
entitled thereto for twenty-five years after such payment
the unknown heirs are presumed to have been dead at the time
of the sale. A special proceeding may be commenced for the
distribution of such proceeds to the persons entitled
thereto.
2. The notice of petition and petition shall be served upon the
unknown heirs or their representatives, the known heirs,
their next of kin, representatives or distributees, and all
persons interested in such proceeds. Service shall be made
at least twenty days before the time at which the petition
is noticed to be heard. Each of the known persons within the
state, and the comptroller of the state if any proceeds have
been paid over to him by a county treasurer, shall be served
personally. All other persons shall be served in the manner
prescribed for the service by publication of a summons.
Sec. 992. JUDGMENT IN PROCEEDING FOR SHARE OF UNKNOWN HEIRS.
Unknown heirs or their representatives not appearing shall be
barred from any interest and the court shall render a judgment
that the interest of such unknown heirs was vested in the known
heirs of the ancestor from whom the unknown heirs derived title
and that the proceeds be paid out of court to the persons
entitled thereto.
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ARTICLE 10
ACTION FOR DOWER
Section 1001. Limitation of action for dower.
1002. Action barred by assignment of dower.
1011. Necessary defendants.
1012. Who may be joined as defendants.
1013. Actions where defendants claim in severalty.
1021. Damages may be recovered; how estimated.
1022. Damages in action against alienee of husband.
1023. Damages where several parcels are affected.
1024. Damages apportioned between heir and alienee.
1025. Damages against grantee of premises
subject to dower.
1031. Complaint.
1041. Interlocutory judgment for admeasurement.
1043. Dower, how admeasured.
1044. Report thereupon.
1045. Setting aside report.
1051. Fees and expenses.
1052. Fees of surveyor or commissioner in
action for dower.
1061. Final judgment.
1062. Plaintiff may recover sum awarded;
court may modify judgment.
1063. Junior incumbrances; not affected
by admeasurement.
1064. Appeal not to stay execution if
undertaking is given.
1071. Plaintiff may consent to receive a gross sum.
1072. Defendant may consent to pay it;
proceedings thereupon.
1073. Interlocutory judgment for sale.
1074. Direction that a part be laid off.
1075. Liens to be ascertained.
1076. Satisfaction or protection of lien.
1077. Payment of taxes, assessments and
water rates out of proceeds.
1078. Report of sale.
1079. Final judgment upon confirming sale.
1081. Certain provisions made applicable.
1091. Action to recover property by
reversioner or remainderman, after
determination of particular estate.
1093. Collusive recovery not to prejudice infant.
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Sec. 1001. LIMITATION OF ACTION FOR DOWER.
1. An action for dower must be commenced by a widow within two
years after the death of her husband, if the husband dies on
or after April 6, 1954.
2. If the husband died before April 6, 1954, an action for
dower must be commenced by his widow within two years from
April 6, 1954. If the widow had, on April 6, 1954, less than
two years under existing law in which to bring an action for
dower, the time so remaining is not enlarged by this
section. Nothing herein contained shall revive a cause of
action barred on April 6, 1954.
Sec. 1002. ACTION BARRED BY ASSIGNMENT OF DOWER.
The acceptance by a widow of an assignment of dower in
satisfaction of her claim upon the property in question bars an
action for dower and may be pleaded by any defendant.
Sec. 1011. NECESSARY DEFENDANTS.
Where the property in which dower is claimed is actually
occupied, the occupant thereof must be made defendant in the
action. Where it is not so occupied, the action must be brought
against some person exercising acts of ownership thereupon, or
claiming title thereto, or an interest therein, at the time of
the commencement of the action.
Sec. 1012. WHO MAY BE JOINED AS DEFENDANTS.
1. In either of the cases specified in section 1011, any other
person claiming title to, or the right to the possession of,
the real property in which dower is claimed may be joined as
defendant in the action.
2. The people of the state of New York may be made a party
defendant in an action for dower where the people of the
state of New York have an interest in or a lien upon the
lands affected thereby, in the same manner as a private
person. In such a case the summons must be served upon the
attorney-general, who must appear in behalf of the people.
But where the people of the state of New York are made a
party defendant, as herein provided, the complaint shall set
forth, in addition to the other matters required, detailed
facts showing the particular nature of the interest in or
the lien on the said real property of the people of the
state of New York and the reason for making the people a
party defendant. Upon failure to state such facts the
complaint shall be dismissed as to the people of the state
of New York.
Sec. 1013. ACTIONS WHERE DEFENDANTS CLAIM IN SEVERALTY.
In an action to recover dower, in a distinct parcel of real
property of which the plaintiff's husband died seized, or in all
the real property which he aliened by one conveyance, all the
persons in possession of, or claiming title to, the property, or
any part thereof, may be made defendants, although they possess
or claim title to different portions thereof in severalty.
Sec. 1021. DAMAGES MAY BE RECOVERED; HOW ESTIMATED.
Where a widow recovers, in an action therefor, dower in property,
of which her husband died seized, she may also recover, in the
same action, damages for withholding her dower, to the amount of
one-third of the annual value of the mense profits of the
property, with interest; to be computed, where the action is
against the heir, from her husband's death, or, where it is
against any other person, from the time when she demanded her
dower of the defendant; and in each case, to the time of the
trial, or application for judgment, as the case may be; but not
exceeding six years in the whole. The damages shall not include
any thing for the use of permanent improvements, made after the
death of the husband.
Sec. 1022. DAMAGES IN ACTION AGAINST ALIENEE OF HUSBAND.
Where a widow recovers dower, in a case not specified in section
1021, she may also recover, in the same action, damages for
withholding her dower, to be computed from the commencement of
the action; but they shall not include any thing for the use of
permanent improvements, made since the property was aliened by
her husband. In all other respects, the same must be computed as
prescribed in section 1021.
Sec. 1023. DAMAGES WHERE SEVERAL PARCELS ARE AFFECTED.
Sections 1021 and 1022 do not authorize the recovery, against a
defendant who is joined with others, of damages for withholding
dower, in any portion of the property not occupied or claimed by
him.
Sec. 1024. DAMAGES APPORTIONED BETWEEN HEIR AND ALIENEE.
Where a widow recovers dower in real property aliened by the heir
of her husband, she may recover, in a separate action against
him, her damages for withholding her dower, from the time of the
death of her husband to the time of the alienation, not exceeding
six years in the whole. The sum recovered from him must be
deducted from the sum which she would otherwise be entitled to
recover from the grantee; and any sum recovered as damages from
the grantee, must be deducted from the sum, which she would
otherwise be entitled to recover from the heir.
Sec. 1025. DAMAGES AGAINST GRANTEE OF PREMISES SUBJECT TO
DOWER.
If the defendant, in an action for dower, aliens the real
property in question after the filing of a notice of pendency of
action and an execution against him for the plaintiff's damages
is returned wholly or partly unsatisfied, an action may be
maintained by the plaintiff against any person who has been in
possession of the property under the defendant's conveyance, to
recover the unsatisfied portion of the damages, for a time not
exceeding that during which he possessed the property.
Sec. 1031. COMPLAINT.
The complaint in an action for dower must describe the property
claimed with common certainty, by setting forth the name of the
township or tract and the number of the lot, if there is any, or
in some other appropriate manner, so that from the description,
possession of the property claimed may be delivered where the
plaintiff is entitled thereto, and must set forth the name of the
plaintiff's husband.
Sec. 1041. INTERLOCUTORY JUDGMENT FOR ADMEASUREMENT.
If the defendant makes default in appearing or pleading or if the
right of the plaintiff to dower is not disputed by the answer, or
if it appears, by the verdict, report, or decision upon a trial,
that the plaintiff is entitled to dower in the real property
described in the complaint an interlocutory judgment must be
rendered which, except as otherwise prescribed in this article,
must direct that the plaintiff's dower in the property,
particularly describing it, be admeasured by a referee,
designated in the judgment, or by three reputable and
disinterested freeholders, designated therein, as commissioners
for that purpose.
Sec. 1043. DOWER, HOW ADMEASURED.
The referee or the commissioners must execute their duties in the
following manner:
1. They must, if it is practicable, and, in their opinion, for
the best interests of all the parties concerned, admeasure
and lay off, as speedily as possible, as the dower of the
plaintiff, a distinct parcel, constituting the one-third
part of the real property of which dower is to be
admeasured, designating the part so laid off by posts,
stones, or other permanent monuments.
2. In making the admeasurement, they must take into
consideration any permanent improvements, made upon the real
property, after the death of the plaintiff's husband, or
after the alienation thereof by him; and, if practicable,
those improvements must be awarded within the part not laid
off to the plaintiff; or, if it is not practicable so to
award them, a deduction must be made from the part laid off
to the plaintiff, proportionate to the benefit which she
will derive from so much of those improvements, as is
included in the part laid off to her.
3. If it is not practicable, or if, in the opinion of the
referee or commissioners, it is not for the best interests
of all the parties concerned, to admeasure and lay off to
the plaintiff a distinct parcel of the property, as
prescribed in the foregoing subdivisions of this section,
they must report that fact to the court.
4. They may employ a surveyor, with the necessary assistants,
to aid in the admeasurement.
Sec. 1044. REPORT THEREUPON.
All the commissioners must meet together in the performance of
any of their duties; but the acts of a majority so met are valid.
The referee, or the commissioners, or a majority of them, must
make a full report of their proceedings, specifying therein the
manner in which they have discharged their trust, with the items
of their charges, and a particular description of the portion
admeasured and laid off to the plaintiff; or, if they report that
it is not practicable, or, in their opinion, it is not for the
best interests of all the parties concerned, to admeasure and lay
off a distinct parcel of the property of which dower is to be
admeasured, they must state the reasons for that opinion and all
the facts relating thereto. The report must be acknowledged or
proved, and certified, in like manner as a deed to be recorded,
and must be filed in the office of the clerk.
Sec. 1045. SETTING ASIDE REPORT.
Upon the application of any party to the action, and upon good
cause shown, the court may set aside the report, and, if
necessary, may appoint new commissioners, or a new referee, who
must proceed, as prescribed in this article, with respect to
those first appointed.
Sec. 1051. FEES AND EXPENSES.
The fees and expenses of the commissioners, or of the referee,
including the expense of a survey, when it is made, must be taxed
under the direction of the court; and the amount thereof must be
paid by the plaintiff, and allowed to her, upon the taxation of
her costs.
Sec. 1052. FEES OF SURVEYOR OR COMMISSIONER IN ACTION FOR
DOWER.
A surveyor, employed as prescribed by law, in an action for
dower, or to determine dower, is entitled to five dollars for
each day actually and necessarily occupied in surveying, laying
out, marking, or mapping land therein. Each assistant so
employed is entitled to two dollars for each day actually and
necessarily occupied in serving under the surveyor's direction.
Each commissioner appointed as prescribed by law to admeasure
dower is entitled to five dollars for each day's actual and
necessary service.
Sec. 1061. FINAL JUDGMENT.
Upon the report being confirmed by the court, final judgment must
be rendered. If the referee or commissioners have admeasured and
laid off to the plaintiff a distinct parcel of the property, the
judgment must award to her, during her natural life, the
possession of that parcel, describing it, subject to the payment
of all taxes, assessments, and other charges, accruing thereupon
after she takes possession. If the referee or the commissioners
report, that is not practicable, or that, in his or their
opinion, it is not for the best interests of all the parties
concerned, so to admeasure and lay off a distinct parcel of the
property, the final judgment must direct, that a sum, fixed by
the court, and specified therein, equal to one-third of the
rental value of the real property, as ascertained by a reference
or otherwise, be paid to the plaintiff, annually or oftener, as
directed in the judgment, during her natural life, for her dower
in the property; and that the sum so to be paid, be and remain a
charge upon the property, during her natural life. The final
judgment may also award damages for the withholding of dower.
Sec. 1062. PLAINTIFF MAY RECOVER SUM AWARDED; COURT MAY
MODIFY JUDGMENT.
The plaintiff may, from time to time, maintain an action against
the owner, or a person who was the owner of the property, to
recover any installment of the sum, so awarded to her for her
dower, which became due during his ownership, and remains unpaid.
Or, if an installment remains due and unpaid, she may maintain an
action to procure a sale of the property, and enforce the payment
of the installments, due and to become due, out of the proceeds
of the sale. Such an action must be conducted as if the charge
upon the real property was a mortgage to the same effect. If, at
any time, it is made to appear to the court that the rental value
of the real property has materially increased or diminished, the
court may, by an order, to be made upon notice to all the persons
interested, modify the final judgment by increasing or
diminishing the sum to be paid to the plaintiff.
Sec. 1063. JUNIOR INCUMBRANCES; NOT AFFECTED BY
ADMEASUREMENT.
Where a portion of the property is admeasured and laid off to the
plaintiff as her dower, a lien which is inferior to the
plaintiff's right of dower attaches, during the life of the
plaintiff, to the residue, or to the portion or share of the
residue which was subject to it, as if the portion laid off to
the plaintiff had not been a part of the property.
Sec. 1064. APPEAL NOT TO STAY EXECUTION IF UNDERTAKING IS
GIVEN.
An appeal from a final judgment awarding to the plaintiff
possession of the part admeasured and laid off to her does not
stay the execution thereof unless the court, or a judge thereof,
grants an order directing such a stay. Such an order shall not be
granted if an undertaking is given on the part of the respondent,
with one or more sureties approved by the court, or a judge
thereof, to the effect that, if the judgment appealed from is
reversed or modified, and restitution is awarded, she will pay to
the person entitled thereto the value of the use and occupation
of the part so admeasured and laid off to her, or of the portion
restitution of which is awarded, during the time she holds
possession thereof, by virtue of the judgment.
Sec. 1071. PLAINTIFF MAY CONSENT TO RECEIVE A GROSS SUM.
In an action for dower, the plaintiff may, at any time before an
interlocutory judgment is rendered, by reason of the defendant's
default in appearing or pleading, or, where an issue of fact is
joined, at any time before the commencement of the trial, file
with the clerk a consent to accept a gross sum, in full
satisfaction and discharge of her right of dower in the real
property described in the complaint. Such a consent must be in
writing, and acknowledged or proved, and certified, in like
manner as a deed to be recorded. A copy thereof, with notice of
the filing, must be served upon each adverse party who has
appeared, or who appears after the filing.
Sec. 1072. DEFENDANT MAY CONSENT TO PAY IT; PROCEEDINGS
THEREUPON.
At any time after a consent is filed, as prescribed in section
1071, and before an interlocutory judgment is rendered, any
defendant may apply to the court, upon notice, for an order
granting him leave to pay such a gross sum. Thereupon the court
may, in its discretion, and upon such terms as justice requires,
ascertain the value of the plaintiff's right of dower in the
property, by a reference or otherwise, and make an order
directing payment by the applicant of the sum so ascertained,
within a time fixed by the order, not exceeding sixty days after
service of a copy thereof and directing the execution by the
plaintiff of a release of her right of dower, upon receipt of the
money. Obedience to the order may be enforced, either by
punishment for contempt, or by striking out the pleading of the
offending party and rendering judgment against him or her, or in
both modes.
Sec. 1073. INTERLOCUTORY JUDGMENT FOR SALE.
Where the plaintiff's consent has been filed as prescribed in
section 1071 and she is entitled to an interlocutory judgment in
the action, the court must, upon the application of either party,
ascertain, by reference or otherwise, whether a distinct parcel
of the property can be admeasured and laid off to the plaintiff,
as tenant in dower, without material injury to the interests of
the parties. If it appears to the court that a distinct parcel
cannot be so admeasured and laid off, the interlocutory judgment
must, except in the case specified in the section 1074, direct
that the property be sold by the sheriff, or by a referee
designated therein; and that, upon the confirmation of the sale,
each party to the action, and every person deriving title from,
through, or under a party, after the filing of the judgment-roll,
or of a notice of the pendency of the action as prescribed by
law, be barred of and from any right, title, or interest in or to
the property sold.
Sec. 1074. DIRECTION THAT A PART BE LAID OFF.
In a case specified in section 1071, where the property, or a
part thereof, consists of one or more vacant or unimproved lots,
the plaintiff's consent may contain a stipulation to take a
distinct parcel, out of those lots, in lieu of a gross sum. In
that case, the interlocutory judgment, instead of directing a
sale, may direct if it appears to be just so to do, that
commissioners be appointed to admeasure and lay off to the
plaintiff a distinct parcel, out of the vacant or unimproved
lots; and, if there is any other property, that it be sold, and a
gross sum be paid to her out of the proceeds thereof, as
prescribed in sections 1075, 1076, 1077 and 1078. The plaintiff's
title to each distinct parcel, admeasured and laid off to her, as
prescribed in this section, is that of an estate of inheritance
in fee simple. In admeasuring and laying off the same, the
commissioners must consider quantity and quality relatively,
according to the value of the plaintiff's right of dower in the
vacant or unimproved lots, out of which the admeasurement is to
be made; which must be ascertained, in proportion to the value of
those lots, as prescribed in sections 1075, 1076, 1077 and 1078,
for fixing a gross sum to be paid to her out of the proceeds of a
sale.
Sec. 1075. LIENS TO BE ASCERTAINED.
Before an interlocutory judgment is rendered for the sale of the
property, the court must direct a reference to ascertain whether
any person not a party, has a lien upon the property, or any part
thereof. But the court may direct or dispense with such
reference, in its discretion, where a party produces a search,
certified by the clerk, or by the clerk and register as the case
requires, of the county where the property is situated and it
appears therefrom, and by the affidavits, if any, produced
therewith, that there is no such outstanding lien. Except as
otherwise expressly prescribed in this article, the proceedings
upon and subsequent to the reference must be the same as
prescribed by law where a reference is made in an action for
partition to ascertain whether there is a creditor not a party
who has a lien on the share or interest of a party.
Sec. 1076. SATISFACTION OR PROTECTION OF LIEN.
Where the interlocutory judgment directs a sale, if the right of
dower of the plaintiff is inferior to any other lien upon the
property, the judgment may, in the discretion of the court,
direct that the property be sold either subject to the lien, or
discharged from the lien; and, in the latter case, that the
officer making the sale pay the amount of the lien out of the
proceeds of the sale.
Sec. 1077. PAYMENT OF TAXES, ASSESSMENTS AND WATER RATES OUT
OF PROCEEDS.
Where a judgment, rendered in an action for dower directs a sale
of the real property, the officer making the sale must, out of
the proceeds, unless the judgment otherwise directs, pay all
taxes, assessments, and water rates which are liens upon the
property sold and redeem the property sold from any sales for
unpaid taxes, assessments, or water rates which have not
apparently become absolute. The sums necessary to make those
payments and redemptions are deemed expenses of the sale.
Sec. 1078. REPORT OF SALE.
Immediately after completing the sale and executing the proper
conveyance to the purchaser, the officer making the sale must
make and file with the clerk a report thereof, showing the name
of the purchaser and the purchase-price paid by him, or, if the
property was sold in parcels, the name of each purchaser and the
price and a description of the parcel sold to him, the sums which
the officer has paid out of the proceeds of the sale, pursuant to
the interlocutory judgment, the purpose for which each payment
was made, the amount and items of his fees and expenses, and the
net amount of the proceeds, after deducting the payments.
Sec. 1079. FINAL JUDGMENT UPON CONFIRMING SALE.
Upon confirming the sale, the court must ascertain, by a
reference or otherwise, the rights and interests of each of the
parties in and to the proceeds of the sale, and also what gross
sum of money is equal to the value of the plaintiff's dower in
the net proceeds of the sale, calculated upon the principles
applicable to life annuities. The court must thereupon render
final judgment confirming the sale and directing that the gross
sum so ascertained be paid to the plaintiff, in full satisfaction
of her right of dower and that the remainder of the proceeds of
the sale be distributed among the persons entitled thereto.
Sec. 1081. CERTAIN PROVISIONS MADE APPLICABLE.
The provisions of law relating to a sale in partition and to the
distribution, investment, and care of the proceeds, apply, as far
as they are applicable, to a sale made as prescribed in this
article and to the distribution of the proceeds of a sale, as
prescribed in section 1079.
Sec. 1091. ACTION TO RECOVER PROPERTY BY REVISIONER OR
REMAINDERMAN, AFTER DETERMINATION OF PARTICULAR
ESTATE.
Where a tenant for life, or for a term of years, suffers a
judgment to be taken against him, by consent or by default, in an
action for dower, the heir or person owning the reversion or
remainder, may, after the determination of the particular estate,
maintain an action to recover the property.
Sec. 1093. COLLUSIVE RECOVERY NOT TO PREJUDICE INFANT.
Where a widow, not having a right to dower, recovers dower
against an infant, by the default or collusion of his guardian,
the infant shall not be prejudiced thereby; but when he comes of
full age, he may bring an action of ejectment against the widow,
to recover the property so wrongfully awarded for dower, with
damages from the time when she entered into possession, although
that is more than six years before the commencement of the
action.
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ARTICLE 11
PROCEEDING TO DISCOVER THE DEATH OF A TENANT FOR LIFE
Section 1101. Petition for production of tenant for life.
1102. Contents of petition.
1103. Service of petition and notice.
1104. Proceedings upon presentation of petition.
1105. Service of order; powers of court or referee.
1106. Habeas corpus.
1107. Report of referee.
1111. Dismissal of petition when order
complied with.
1112. When life tenant deemed dead and
petitioner let into possession.
1121. Commission to be issued if life
tenant is without the state.
1122. General provisions respecting the commission.
1123. Petitioner to give notice of its execution.
1124. Execution thereof.
1125. Proceedings on return of commission.
1131. Costs.
1141. Property; when restored.
1142. Remedy of person evicted for rents
and profits.
1143. Order not conclusive in ejectment.
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Sec. 1101. PETITION FOR PRODUCTION OF TENANT FOR LIFE.
A person entitled to claim real property after the death of
another who has a prior estate therein may, not oftener than once
in each calendar year, apply by petition to the supreme court, at
a special term thereof, held within the judicial district wherein
the property or a part thereof is situated, for an order
directing the production of the tenant for life, as prescribed in
this article, by a person, named in the petition, against whom an
action of ejectment to recover the real property can be
maintained, if the tenant for life is dead or, where there is no
such person, by the guardian, husband, trustee, or other person,
who has, or is entitled to, the custody of the person of the
tenant for life, or the care of his estate.
Sec. 1102. CONTENTS OF PETITION.
The petition must be in writing and verified by the affidavit of
the petitioner, to the effect that the matters of fact therein
set forth are true. It must contain:
a. A description of the real property and a statement of the
petitioner's interest therein and of such other facts as
show that the case is within the provisions of section 1101;
b. An averment that the petitioner believes that the person
upon whose life the prior estate depends is dead, together
with a statement of the grounds upon which the petitioner's
belief is founded.
Sec. 1103. SERVICE OF PETITION AND NOTICE.
A copy of the petition, including the affidavit, together with
notice of the time and place at which the petition will be
presented, must be personally served, at least fourteen days
before its presentation, upon the person required, by the prayer
thereof, to produce the tenant for life.
Sec. 1104. PROCEEDINGS UPON PRESENTATION OF PETITION.
Upon the presentation of the petition and affidavit, with due
proof, by affidavit, of service of a copy thereof, and of the
notice, if sufficient cause to the contrary is not shown by the
adverse party, the court must either issue a commission, as
prescribed in the following sections of this article or make an
order, directing the adverse party, at a time and place therein
specified, before the court, or a referee therein designated, to
produce the person upon whose life the prior estate depends, or,
in default thereof, to prove that he is living.
Sec. 1105. SERVICE OF ORDER; POWERS OF COURT OR REFEREE.
Where an order requiring the production of the tenant for life,
or proof that he is living, is made as prescribed in section
1104, a certified copy thereof must be served, at least fourteen
days before the time therein specified, upon the person required
to make the production or proof, or upon his attorney. Upon
presentation of proof of service, by affidavit, the court or the
referee must, at the time and place specified in the order, or at
the time and place to which the hearing may be adjourned, hear
the allegations and proofs of the parties, respecting the
identity of any person produced, with the person whose death is
in question or, if the latter person is not produced, respecting
the reasons for the failure to produce him, and whether he is
living. Where a referee is appointed, he has the same powers, and
is entitled to the same compensation, as a referee appointed for
the trial of an issue in a civil action in a court of record.
Sec. 1106. HABEAS CORPUS.
If it appears, by affidavit, to the satisfaction of the court,
that the person required to be produced is imprisoned within the
state, for any cause, except upon a sentence for a felony, or is
kept or detained, within the state, by any person, the court may,
either before or after making the order for production, issue a
writ of habeas corpus to bring him before it, or before the
referee, as the case requires. The writ must be served and
executed, and disobedience thereto may be punished, as where a
writ of habeas corpus is issued, to inquire into the cause of the
detention of a prisoner.
Sec. 1107. REPORT OF REFEREE.
The referee must deliver his report to the petitioner, or file it
with the clerk, within ten days after the case is closed. He must
state therein whether any person was or was not produced before
him as being the person whose death is in question. He must
append thereto, in the form of depositions, the proofs, if any,
respecting the identity of any person so produced with the person
whose death is in question or if no one is so produced, upon the
question whether the latter person is living. He must also state
in his report his conclusions upon the questions controverted
before him.
Sec. 1111. DISMISSAL OF PETITION WHEN ORDER COMPLIED WITH.
If it appears to the satisfaction of the court, upon the
referee's report and the proofs thereto appended or, where a
referee is not appointed, upon the allegations and proofs of the
parties before the court, that the party required to produce the
tenant for life, or to prove his existence, has fully complied
with the order, the court must make an order dismissing the
petition and requiring the petitioner to pay the costs of the
proceedings.
Sec. 1112. WHEN LIFE TENANT DEEMED DEAD AND PETITIONER LET
INTO POSSESSION.
If it appears from the referee's report, or upon the hearing
before the court, that the person upon whose life the prior
estate depends was not produced and if the party required to
produce him, or to prove his existence has not proved to the
satisfaction of the court that he is living, a final order must
be made, declaring that he is presumed to be dead, for the
purpose of the proceedings, and directing that the petitioner be
forthwith let into possession of the real property, as if that
person was actually dead.
Sec. 1121. COMMISSION TO BE ISSUED IF LIFE TENANT IS WITHOUT
THE STATE.
If before or at the time of the presentation of the referee's
report to the court, or, where a referee is not appointed, at any
time before the final order is made, the party upon whom the
petition and notice are served presents to the court presumptive
proof, by affidavit, that the person whose death was in question
is, or lately was, at a place certain without the state, the
court must make an order requiring the petitioner to take out a
commission, directed to one or more persons residing at or near
that place, either designated in the order or to be appointed
upon a subsequent application for the commission, for the purpose
of obtaining a view of the person whose death is in question and
of taking such testimony respecting his identity as the parties
produce. The order must also direct that the proceedings upon the
petition be stayed until the return of the commission and that
the petition be dismissed, with costs, unless the petitioner
takes out the commission within a time specified in the order,
and diligently procures it to be executed and returned at his own
expense.
Sec. 1122. GENERAL PROVISIONS RESPECTING THE COMMISSION.
It is not necessary, unless the court specially so directs, that
the witnesses to be examined should be named in the commission,
or that interrogatories should be annexed thereto. The commission
must be executed and returned, and the deposition taken must be
filed and used, as prescribed by law for depositions taken
without the state for use within the state, except as otherwise
specially prescribed in this article.
Sec. 1123. PETITIONER TO GIVE NOTICE OF ITS EXECUTION.
The petitioner must give to the adverse party, or his attorney,
written notice of the time when, and the place where, the
commissioner or commissioners will attend, for the purpose of
executing the commission, as follows:
a. If the place, where the commission is to be executed, is
within the United States, or the dominion of Canada, he must
give at least two months' notice;
b. If it is within any of the West India islands, he must give
at least three months' notice;
c. In every other case, he must give at least four months'
notice.
Notice may be given, as required by this section, by serving it
as prescribed by law for the service of a paper upon an attorney
in a civil action in the supreme court.
Sec. 1124. EXECUTION THEREOF.
The commissioner or commissioners possess the same powers, and
must proceed in the same manner, as a referee, appointed by an
order requiring the production of the tenant for life, or proof
of his existence; except that they cannot proceed unless a person
is produced before them, as being the person whose death is in
question. The return to the commission must expressly state
whether any person was or was not so produced. The testimony
respecting the identity of a person so produced must be taken,
unless otherwise specially directed by the court, as prescribed
by law, for taking the deposition of a witness upon oral
interrogatories except that it is not necessary to give any other
notice of the time and place of examination than that prescribed
in section 1123.
Sec. 1125. PROCEEDINGS ON RETURN OF COMMISSION.
Upon the return of the commission, the proceedings are the same
as upon the report of a referee, as prescribed in sections 1111
and 1112; but the court may, in its discretion, receive
additional proofs from either party.
Sec. 1131. COSTS.
Where costs of a special proceeding taken as prescribed in this
article are awarded, they must be fixed by the court at a gross
sum, not exceeding fifty dollars, in addition to disbursements.
Where provision is not specially made in this article for the
award of costs, they may be denied, or awarded to or against
either party, as justice requires.
Sec. 1141. PROPERTY; WHEN RESTORED.
The possession of real property, which has been awarded to the
petitioner as prescribed in this article, upon the presumption of
the death of the person upon whose life the prior estate depends,
must be restored, by the order of the court, to the person
evicted, or to his heirs or legal representatives, upon the
petition of the latter and proof, to the satisfaction of the
court, that the person presumed to be dead is living. The
proceedings upon such an application are the same as prescribed
in this article upon the application of the person to whom
possession is awarded.
Sec. 1142. REMEDY OF PERSON EVICTED FOR RENTS AND PROFITS.
A person evicted as prescribed in this article may, if the
presumption upon which he is evicted is erroneous, maintain an
action against the person who has occupied the property, or his
executor or administrator, to recover the rents and profits of
the property, during the occupation, while the person upon whose
life the prior estate depends is or was living.
Sec. 1143. ORDER NOT CONCLUSIVE IN EJECTMENT.
A final order made as prescribed in this article, awarding to the
petitioner the possession of real property is presumptive
evidence only, in an action of ejectment brought against him by
the person evicted, or in an action brought as prescribed in
section 1142, of the life or death of the person, upon whose life
the prior estate depends.
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ARTICLE 12
OTHER ACTIONS AND PROCEEDINGS BETWEEN CO-OWNERS OR OWNERS OF
SUCCESSIVE INTERESTS
Section 1201. Action by joint tenant or tenant in
common; may maintain action against co-
tenant.
1211. Action by joint tenant, tenant in
common or tenant by the entirety for
extinguishment of missing co-tenant's estate
upon deposit of its value.
1221. Action to sell preemptive rights
against the city of New York.
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Sec. 1201. ACTION BY JOINT TENANT OR TENANT IN COMMON; MAY
MAINTAIN ACTION AGAINST CO-TENANT.
A joint tenant or a tenant in common of real property, or his
executor or administrator, may maintain an action to recover his
just proportion against his co-tenant who has received more than
his own just proportion, or against his executor or
administrator.
Sec. 1211. ACTION BY JOINT TENANT, TENANT IN COMMON OR TENANT
BY THE ENTIRETY FOR EXTINGUISHMENT OF MISSING CO-
TENANT'S ESTATE UPON DEPOSIT OF ITS VALUE.
1. Where real property is held by two or more persons in their
own right as tenants in common, joint tenants or tenants by
the entirety and one of such tenants is missing under
circumstances which afford reasonable ground to believe that
he is dead, the other tenants or tenant may maintain an
action in the supreme court to obtain a determination of the
value of the estate of the missing co-tenant and a judgment
extinguishing the estate of the missing co-tenant upon
payment into court for his credit of the amount so
determined to be the value of his estate.
Persons known or unknown who are or may be the devisees or
distributees of a missing co-tenant may be joined as
defendants in such action.
2. (a) Service upon the missing co-tenant shall be made
in the manner provided for service in an action in
which the complaint demands judgment that the person to
be served be excluded from a vested or contingent
interest in specific real property in this state. In
addition, the court, at any stage of such action, may
direct that notice of the action be published at or
near the place where the co-tenant, when last heard
from, was known or believed to be.
(b) The court may, in its discretion, appoint a guardian ad
litem to represent the interests of the missing co-
tenant, or of persons who are or may be his devisees or
distributees.
3. A finding of reasonable ground to believe that the missing
co-tenant is dead may be made, for purposes of this section,
either (a) upon proof that the co-tenant has been absent
from his usual place of abode for seven successive years
last past, and that a diligent search has been made to
discover evidence that he is living and that no such
evidence has been found, or (b) upon proof of other
circumstances from which the probability that the missing co-
tenant is dead may reasonably be inferred, although the
period of his absence is less than seven years, provided
that such period is not less than one year.
4. Relief extinguishing the estate of the missing person shall
be deemed equitable and shall be granted in the discretion
of the court. However, no such relief shall be granted if
the court shall find as a fact that the missing person is
dead. In such event, the judgment dismissing the complaint
shall state such determination, but shall not be deemed an
adjudication of death of the missing person for any purpose
other than the dismissal of the complaint and shall not be
controlling in any other action or proceeding, whether or
not between the same parties, in which the fact of death of
the missing person is in issue.
5. The finding of reasonable ground to believe that the missing
person is dead shall be made, and the value of the property
and of the estate of the missing co-tenant shall be
determined, by the court without a jury or by a referee.
6. The value of the estates of tenants by the entirety shall be
deemed equal. The proportionate shares of joint tenants and
tenants in common shall be determined in like manner as in
an action for partition.
7. Costs of the action, and fees and disbursements of a
guardian ad litem appointed to represent the interests of
the missing co- tenant or his devisees or distributees shall
be assessed against the parties in such proportions as the
court shall direct and the part thereof assessed against the
missing person shall be charged against the value of the
estate of the missing person.
8. A judgment extinguishing the estate of the missing co-tenant
shall be conclusive even though the missing person was in
fact alive, or was in fact dead, at the date of the entry
thereof, and shall be conclusive against (a) any person
claiming under the missing person by title accruing or
conveyance recorded after the filing of the judgment-roll,
or of the notice of pendency of the action, and (b) any
person claiming under the missing co-tenant who is made a
party to the action. The judgment shall also have like
effect as a conveyance made by the missing co-tenant or by
the missing co-tenant and the other co-tenant or co-tenants,
conveying the premises to the co-tenant or co-tenants in
accordance with their interests resulting from the judgment.
The court may direct that an instrument of conveyance in
conformity with the judgment be executed and delivered by
the sheriff in the name of the co-tenant.
Sec. 1221. ACTION TO SELL PREEMPTIVE RIGHTS AGAINST THE CITY
OF NEW YORK.
1. In all cases where several persons are the owners, or claim
to be the owners of any real estate or chattels real lying
within the bounds of the city of New York, having different
estates, or estates in common therein, in possession,
remainder, or reversion, and which such persons shall, by
virtue of such ownership, or claim to such ownership, be
entitled, or claim to be entitled, by law to a preemptive
right to have, take, or demand the grant or lease of any
other land, or easement in land, from such city, the supreme
court shall have power, and such court is hereby vested with
full power and authority, on the application of either of
such owners, or of such city, to decree an absolute sale and
conveyance of such right of preemption, and to make such
disposition of the net moneys arising from such sale, after
the payment of the costs and expenses of the proceedings, as
shall be just and proper, according to the rights and
interests of such several owners.
2. Whenever any owner shall reside in the city of New York,
notice of such intended application shall be served
personally on such owner, or by leaving the same at his
dwelling-house with some person of suitable age and
discretion at least twenty days before such application is
made; and in all cases where such owner shall reside out of
such city and within any of the United States, and such
place of residence be known to the applicant, such notice
shall be served by mail, addressed to such owner at his
place of residence, at least three months before such
application is made. Proof of such service by affidavit
shall be made to the court before any order of sale shall be
made. Any of the parties to such suit may become the
purchaser on such sale.
3. In all cases where any owner shall be an infant, a guardian
shall be appointed for such infant, who shall give the like
security, and possess the like powers, and discharge the
like duties as in cases for the partition of lands.
4. Such sale shall be made and conducted on like notice by the
like officer, and in the same manner and form as sales of
real estate on the foreclosure of a mortgage by virtue of a
decree or order of such court, and a deed of conveyance for
such right of preemption shall in like manner be executed
and delivered to the purchaser, which deed shall vest in the
purchaser absolutely all the claim, right, title, and
interest of the owner of such right of preemption, and every
of them, of, in or to such right of preemption thus sold and
conveyed; provided always, in every case the applicant shall
give six weeks' previous notice of such intended application
if the owners entitled by law to such preemption right are
residents, and six months' previous notice of such intended
application if the owners entitled by law to such preemption
right are non-residents of the state, by publication for
three months successively, twice in each week, in two of the
daily papers published in such city prior to such
application to the court for an order of sale; and provided
also, that the court shall be satisfied that such order of
sale shall not interfere with or impair the obligation
contained in any lease or contract made by such city to or
with any person or persons whatsoever.
5. Whenever a right of dower, whether inchoate or consummate, a
tenancy by curtesy, or any other estate for life or for
years shall have existed in the preemptive rights so sold
and conveyed, the owner of such particular estate in the
rights sold is entitled to receive from the moneys arising
from such sale either a sum in gross or the earnings of a
sum invested for his benefit. The determination as to
whether a sum in gross or the earnings of a sum invested
shall be awarded to the owner of such particular estate
shall be governed by the provisions of section 968 with
respect to the proceeds of a sale in partition.
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ARTICLE 13
ACTION TO FORECLOSE A MORTGAGE
Section 1301. Separate action for mortgage debt.
1311. Necessary defendants.
1312. Representative defendants.
1313. Permissible defendants.
1315. Action by owner of junior
participating interest.
1321. Default or admission.
1325. Receiver.
1331. Notice of pendency.
1341. Payment into court of amount due.
1351. Judgment of sale.
1352. Judgment foreclosing right of redemption.
1353. Conveyance.
1354. Distribution of proceeds of sale.
1355. Report of sale; confirmation.
1361. Application for surplus; reference.
1362. Payment of surplus out of court.
1371. Deficiency judgment.
1391. Proceeding for share of unknown heirs.
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Sec. 1301. SEPARATE ACTION FOR MORTGAGE DEBT.
1. Where final judgment for the plaintiff has been rendered in
an action to recover any part of the mortgage debt, an
action shall not be commenced or maintained to foreclose the
mortgage, unless an execution against the property of the
defendant has been issued upon the judgment to the sheriff
of the county where he resides, if he resides within the
state, or if he resides without the state, to the sheriff of
the county where the judgment-roll is filed; and has been
returned wholly or partly unsatisfied.
2. The complaint shall state whether any other action has been
brought to recover any part of the mortgage debt, and, if
so, whether any part has been collected.
3. While the action is pending or after final judgment for the
plaintiff therein, no other action shall be commenced or
maintained to recover any part of the mortgage debt, without
leave of the court in which the former action was brought.
Sec. 1311. NECESSARY DEFENDANTS.
Each of the following persons, whose interest is claimed to be
subject and subordinate to the plaintiff's lien, shall be made a
party defendant to the action:
1. Every person having an estate or interest in possession, or
otherwise, in the property as tenant in fee, for life, by
the curtesy, or for years, and every person entitled to the
reversion, remainder, or inheritance of the real property,
or of any interest therein or undivided share thereof, after
the determination of a particular estate therein.
2. Every person having a right of dower or an inchoate right of
dower in the real property or any part or share thereof.
3. Every person having any lien or incumbrance upon the real
property which is claimed to be subject and subordinate to
the lien of the plaintiff.
4. Where the mortgage is upon any of the public utilities
regulated by the public service law, the public service
commission.
Sec. 1312. REPRESENTATIVE DEFENDANTS.
1. Where a trust has been created by will or by deed or by
declaration of trust, the trustees of such trust who shall
have duly qualified shall be made parties defendant and
shall represent all persons who are or may become entitled
to a beneficial interest in the property or an undivided
share thereof or in the proceeds of sale thereof under and
by virtue of said trust and all remaindermen who are or may
become entitled to the reversion, remainder or inheritance
of the property or the proceeds of sale thereof either
before or after the termination of said trust, without
naming such beneficiaries or remaindermen as parties
defendant. Service of the summons and complaint upon any one
of such duly qualified trustees shall be sufficient service
upon the trust estate and upon all persons who are or may
become entitled to a beneficial interest in the property or
an undivided share thereof or in the proceeds of sale
thereof and all remaindermen who are or may become entitled
to the reversion, remainder or inheritance of the property
or the proceeds of sale thereof either before or after the
termination of said trust.
2. Whenever the duly qualified executors under a will are made
parties defendant they shall represent all of the legatees
named in the will and the successors and assigns of such
legatees, irrespective of whether or not such legacies are a
charge upon the real property, and such legatees, their
successors and assigns need not be named as parties
defendant. Service of the summons and complaint upon any one
of such duly qualified executors shall be sufficient service
upon the executors under said will and upon all legatees
named in said will, their successors and assigns,
irrespective of whether or not such legacies are a charge
upon the real property.
Sec. 1313. PERMISSIBLE DEFENDANTS.
Any person who is liable to the plaintiff for payment of the debt
secured by the mortgage may be made a defendant in the action.
The state may be made a party defendant to an action for the
foreclosure of a mortgage on real property, where it has an
interest in or a lien on the property subsequent to the lien of
the mortgage sought to be foreclosed in said action, in the same
manner as a private person.
Sec. 1315. ACTION BY OWNER OF JUNIOR PARTICIPATING INTEREST.
An action may be maintained by the owner of a junior
participating share or interest in a bond or note secured by a
mortgage on real, or on real and personal property, for the
payment of principal and interest and for foreclosure of such
bond or note and mortgage in its entirety, or in the alternative,
subject to the interest of the owner of the senior share,
notwithstanding that the entire mortgage debt may be due and
payable according to its terms, in the event that the owner of
the senior share, to whom is given the right in the participating
agreement to enforce such bond or note and mortgage shall fail or
refuse to commence an action for the enforcement of such bond or
note and mortgage in any manner permitted thereby, after ten
days' written notice and demand to commence any such action,
following default in the performance of any of the terms and
covenants of such bond or note and mortgage. Upon such failure or
refusal, such junior participant may exercise any and all options
and remedies provided in such bond or note and mortgage or
otherwise available to any holder thereof.
Sec. 1321. DEFAULT OR ADMISSION.
1. If the defendant fails to answer within the time allowed or
the right of the plaintiff is admitted by the answer, upon
motion of the plaintiff, the court shall ascertain and
determine the amount due, or direct a referee to compute the
amount due to the plaintiff and to such of the defendants as
are prior incumbrancers of the mortgaged premises, and to
examine and report whether the mortgaged premises can be
sold in parcels and, if the whole amount secured by the
mortgage has not become due, to report the amount thereafter
to become due. Where the defendant is an infant, and has put
in a general answer by his guardian, or if any of the
defendants be absentees, the order of reference also shall
direct the referee to take proof of the facts and
circumstances stated in the complaint and to examine the
plaintiff or his agent, on oath, as to any payments which
have been made.
2. When he moves for judgment, the plaintiff shall show whether
any of the defendants who have not appeared are absentees.
Sec. 1325. RECEIVER.
1. Where the action is for the foreclosure of a mortgage
providing that a receiver may be appointed without notice,
notice of a motion for such appointment shall not be
required.
2. Where a receiver has been appointed, upon the application of
the plaintiff or of any holder of a certificate evidencing
an undivided interest in the mortgage or mortgage debt and
upon proof that no answer has been interposed affecting the
validity of the mortgage or the amount due thereon, or
asserting any prior lien, or asserting a plea of tender of
payment of the amount due, or which if sustained would
affect in any way the right of the plaintiff to a judgment
in foreclosure and to the payment of the amount claimed by
the plaintiff in his complaint to be due, the court may
direct that the receiver of the rents appointed in such
action apply, during the pendency of the action, the rents
received by him towards the payment of accrued interest on
the mortgage, provided due provision shall have been made
for the payment of taxes, administration expenses, fees and
charges and such reserve as the court may direct. Any monies
so paid over by the receiver shall be deducted from the
amount of the judgment in said action.
3. In a city with a population of one million or more persons
an order appointing a receiver to receive the rents and
profits of a multiple dwelling shall provide that the
receiver:
(a) register with any municipal department as provided by
applicable law; and
(b) expend rents and income and profits as described in
subdivision two of this section, except that a priority
shall be given to the correction of immediately
hazardous and hazardous violations of housing
maintenance laws within the time set by orders of any
municipal department, or, if not practicable, seek a
postponement of the time for compliance.
Sec. 1331. NOTICE OF PENDENCY.
The plaintiff, at least twenty days before a final judgment
directing a sale is rendered, shall file in the clerk's office of
each county where the mortgaged property is situated a notice of
the pendency of the action, which shall specify, in addition to
other particulars required by law, the date of the mortgage, the
parties thereto and the time and place of recording.
Sec. 1341. PAYMENT INTO COURT OF AMOUNT DUE.
Where an action is brought to foreclose a mortgage upon real
property upon which any part of the principal or interest is due,
and another portion of either is to become due, and the defendant
pays into court the amount due for principal and interest and the
costs of the action, together with the expenses of the
proceedings to sell, if any, the court shall:
1. Dismiss the complaint without costs against plaintiff, if
the payment is made before judgment directing sale; or
2. Stay all proceedings upon judgment, if the payment is made
after judgment directing sale and before sale; but, upon a
subsequent default in the payment of principal or interest,
the court may make an order directing the enforcement of the
judgment for the purpose of collecting the sum then due.
Sec. 1351. JUDGMENT OF SALE.
1. The judgment shall direct that the mortgaged premises, or so
much thereof as may be sufficient to discharge the mortgage
debt, the expenses of the sale and the costs of the action,
and which may be sold separately without material injury to
the parties interested, be sold by or under the direction of
the sheriff of the county, or a referee.
2. Where the mortgage debt is not all due, and the mortgaged
property is so circumstanced that it can be sold in parcels
without injury to the interests of the parties, the final
judgment shall direct that no more of the property be sold
in the first place than is sufficient to satisfy the sum
then due, with the costs of the action and expenses of the
sale. Upon a subsequent default in the payment of principal
or interest the plaintiff may apply for an order directing
the sale of the residue, or of so much thereof as is
necessary to satisfy the amount then due, with the costs of
the application and the expenses of the sale. The plaintiff
may apply for and obtain such an order as often as a default
happens. If it appears that the mortgaged property is so
circumstanced that a sale of the whole will be most
beneficial to the parties, the final judgment may direct
that the whole property be sold discharged from the entire
mortgage debt and that the proceeds of the sale, after
deducting the costs of the action and the expenses of the
sale, be either applied to the satisfaction of the whole sum
secured by the mortgage, with such a rebate of interest as
justice requires; or be first applied to the payment of the
sum due, and the balance, or so much thereof as is
necessary, be invested at interest for the benefit of the
plaintiff, to be paid to him from time to time as any part
of the principal or interest becomes due, or may, at the
option of the mortgagee, direct that the whole property be
sold to satisfy the debt then due with the costs of the
action and expenses of the sale, subject to the continuing
lien of the mortgage for the amount of the debt not then due
and unpaid according to its terms. The provisions of this
section shall not limit or affect the plaintiff's right to
judgment and sale in an action specified in section 1315.
3. If it appears to the satisfaction of the court that there
exists no more than one other mortgage on the premises which
is then due and which is subordinate only to the plaintiff's
mortgage but is entitled to priority over all other liens
and encumbrances except those described in subdivision 2 of
section 1354, upon motion of the holder of such mortgage
made without valid objection of any other party, the final
judgment may direct payment of the subordinate mortgage debt
from the proceeds in accordance with subdivision 3 of
section 1354.
Sec. 1352. JUDGMENT FORECLOSING RIGHT OF REDEMPTION.
Where real property has been sold pursuant to a judgment in an
action to foreclose a mortgage, and an action is thereafter
brought to foreclose or extinguish a right of redemption in such
real property, the judgment, instead of directing a sale of the
property, shall fix the right of any person having a right of
redemption therein or the right to foreclose a subordinate
mortgage or other lien and shall provide that a failure to redeem
or commence an action for the foreclosure of such mortgage or
other lien within such time shall preclude such person having a
right of redemption or the holder of such mortgage or other lien
from redeeming such property or foreclosing such mortgage or
other lien, and thereafter such person having a right of
redemption or the holder of such mortgage or other lien shall be
excluded from claiming any title or interest in such property and
all title or interests of such person having a right of
redemption in, or the right to foreclose a subordinate mortgage
or other lien against such property shall thereby be extinguished
and terminated.
Sec. 1353. CONVEYANCE.
1. After the property has been sold, the officer conducting the
sale shall execute a deed to the purchaser. The plaintiff,
or any other party, may become a purchaser.
2. Before a deed is executed to the purchaser, the plaintiff
shall file the mortgage and any assignment not shown to have
been lost or destroyed in the office of the clerk, unless it
is in a form which can be recorded; in which case it shall
be recorded in the counties where the lands are situated;
the expense of filing or recording and entry shall be
allowed in the taxation of costs; and, if filed with the
clerk, he shall enter in the minutes the time of filing.
3. The conveyance vests in the purchaser the same estate only
that would have vested in the mortgagee if the equity of
redemption had been foreclosed. Such a conveyance is as
valid as if it were executed by the mortgagor and mortgagee,
and, except as provided in section 1315 and subdivision 2 of
section 1341, is an entire bar against each of them and
against each party to the action who was duly summoned and
every person claiming from, through or under a party by
title accruing after the filing of the notice of the
pendency of the action.
Sec. 1354. DISTRIBUTION OF PROCEEDS OF SALE.
1. The officer conducting the sale shall pay, out of the
proceeds, unless otherwise directed, the expenses of the
sale, and pay to the plaintiff, or his attorney, the amount
of the debt, interest and costs, or so much as the proceeds
will pay and take the receipt of the plaintiff, or his
attorney, for the amount so paid, and file the same with his
report of sale.
2. The officer conducting the sale shall pay out of the
proceeds, unless the judgment otherwise directs, all taxes,
assessments, and water rates which are liens upon the
property sold, and redeem the property sold from any sales
for unpaid taxes, assessments or water rates which have not
apparently become absolute. In any city having a population
of one million or more, such officer shall pay out of the
proceeds any liens or incumbrances placed by a city agency
upon the real property which have priority over the
foreclosed mortgage. The sums necessary to make those
payments and redemptions are deemed expenses of the sale.
The provisions of this subdivision shall not apply to any
judgment in an action wherein any municipal corporation of
this state is the plaintiff and the purchaser at the
foreclosure sale thereunder.
3. The officer conducting the sale after fully complying with
the provisions of subdivisions one and two of this section
and if the judgment of sale has so directed shall pay to the
holder of any subordinate mortgage or his attorney from the
then remaining proceeds the amount then due on such
subordinate mortgage, or so much as the then remaining
proceeds will pay and take the receipt of the holder, or his
attorney for the amount so paid, and file the same with his
report of sale.
4. When the sum of the amount of the proceeds before any
distributions are made under this section and the amount of
any other liens which the real property is taken subject to
is one million dollars or more, the officer conducting the
sale shall pay, out of the proceeds remaining after the
provisions of subdivisions one, two and three of this
section have been complied with, the amount of tax on gains
derived from certain real property transfers due from the
defendant pursuant to article thirty-one-B of the tax law to
the state tax commission. Such amount shall be ten per
centum of the sum of the amount of the proceeds before any
distributions are made under this section and the amount of
any other liens which the real property is taken subject to,
unless the defendant shall furnish the officer conducting
the sale a statement of tentative assessment or statement of
no tax due issued by the state tax commission, in which case
the officer shall pay over to the state tax commission the
amount stated on such tentative assessment or statement of
no tax due. The officer conducting the sale shall, along
with such payment, file returns and information in
accordance with procedures established by the state tax
commission.
5. All surplus moneys arising from the sale shall be paid into
court by the officer conducting the sale within five days
after the same shall be received.
Sec. 1355. REPORT OF SALE; CONFIRMATION.
1. Within thirty days after completing the sale and executing
the proper conveyance to the purchaser, unless such time be
extended by the court within said thirty days, the officer
making the sale shall file with the clerk his report under
oath of the disposition of the proceeds of the sale,
accompanied by the vouchers of the persons to whom payments
were made.
2. A motion to confirm such report of sale shall not be made
within three months after the filing of the report and shall
in any event be made not later than four months after the
filing of such report, except that if there be no surplus
moneys arising from the sale of the mortgaged premises under
such judgment, an application for confirmation of the report
of sale may be made at any time after the report shall have
been filed eight days. Where the report of sale shows
surplus money the party moving for confirmation of the
report of sale shall present with his motion papers a proper
voucher for the surplus moneys showing that they have been
paid into court, a certificate of the clerk specifying the
notices of claim to the surplus moneys, if any, so filed
with him, and an affidavit showing any other unsatisfied
lien on the property.
Sec. 1361. APPLICATION FOR SURPLUS; REFERENCE.
1. Any person claiming the surplus moneys arising upon the sale
of mortgaged premises, or any part thereof, either in his
own name, or by his attorney, at any time before the
confirmation of the report of sale, may file with the clerk
in whose office the report of sale is filed, a written
notice of such claim, stating the nature and extent of his
claim and the address of himself or his attorney.
2. On the motion for confirmation, or at any time within three
months thereafter, on notice to all parties who have
appeared in the action or filed claims, on motion of any
party to the action, or any person who has filed a notice of
claim on the surplus moneys, the court, by reference or
otherwise, shall ascertain and report the amount due to him
or any other person who has a lien on such surplus moneys,
and the priority of the several liens thereon and order
distribution of surplus moneys.
3. The owner of the equity of redemption, or any party who has
appeared in the action or any person who files a notice of
claim or who has a recorded lien against the property shall
be given notice by mail or in such other manner as the court
shall direct, to attend any hearing on disposition of
surplus money.
Sec. 1362. PAYMENT OF SURPLUS OUT OF COURT.
1. Upon confirmation of the report of sale, or upon such
proceedings as are provided in section 1361, the court shall
order the payment of the surplus proceeds of sale out of
court to such persons as are entitled thereto.
2. If the property sold has included a right to dower, whether
inchoate or consummate, a tendency by curtesy, or any other
estate for life or years, the owner of such particular
estate in the real property sold is entitled to receive from
the surplus, in satisfaction of his estate or interest,
either a sum in gross or the earnings of a sum invested for
his benefit. The determination as to whether a sum in gross
or the earnings of a sum invested shall be awarded to the
owner of such particular estate shall be governed by the
provisions of section 968 with respect to the proceeds of a
sale in partition.
3. If real property or an interest in real property which is
liable to be disposed of as prescribed in article thirteen
of the surrogate's court act, be sold to satisfy a mortgage
or other lien thereon, which mortgage or lien accrued during
the decedent's lifetime, the surplus money shall be paid in
to the surrogate's court having jurisdiction to issue
letters testamentary or of administration upon the estate of
the decedent, in the following cases: (a) If eighteen months
have not elapsed since the date when letters testamentary or
of administration were first issued. (b) If a proceeding for
a judicial settlement of the accounts of such executor or
administrator has been commenced within eighteen months from
the date of the issue of such letters and is still pending.
(c) If no such letters have been issued and two years have
not elapsed since the death of the decedent.
Sec. 1371. DEFICIENCY JUDGMENT.
1. If a person who is liable to the plaintiff for the payment
of the debt secured by the mortgage is made a defendant in
the action, and has appeared or has been personally served
with the summons, the final judgment may award payment by
him of the whole residue, or so much thereof as the court
may determine to be just and equitable, of the debt
remaining unsatisfied, after a sale of the mortgaged
property and the application of the proceeds, pursuant to
the directions contained in such judgment, the amount
thereof to be determined by the court as herein provided.
2. Simultaneously with the making of a motion for an order
confirming the sale, provided such motion is made within
ninety days after the date of the consummation of the sale
by the delivery of the proper deed of conveyance to the
purchaser, the party to whom such residue shall be owing may
make a motion in the action for leave to enter a deficiency
judgment upon notice to the party against whom such judgment
is sought or the attorney who shall have appeared for such
party in such action. Such notice shall be served personally
or in such other manner as the court may direct. Upon such
motion the court, whether or not the respondent appears,
shall determine, upon affidavit or otherwise as it shall
direct, the fair and reasonable market value of the
mortgaged premises as of the date such premises were bid in
at auction or such nearest earlier date as there shall have
been any market value thereof and shall make an order
directing the entry of a deficiency judgment. Such
deficiency judgment shall be for an amount equal to the sum
of the amount owing by the party liable as determined by the
judgment with interest, plus the amount owing on all prior
liens and encumbrances with interest, plus costs and
disbursements of the action including the referee's fee and
disbursements, less the market value as determined by the
court or the sale price of the property whichever shall be
the higher.
3. If no motion for a deficiency judgment shall be made as
herein prescribed the proceeds of the sale regardless of
amount shall be deemed to be in full satisfaction of the
mortgage debt and no right to recover any deficiency in any
action or proceeding shall exist.
4. Notwithstanding the foregoing provisions and irrespective of
whether a motion for a deficiency judgment shall have been
made or, if made, shall have been denied, the court shall
direct that all moneys remaining in the hands of a receiver
of the rents and profits appointed in the action, after the
payment of the receiver's fees and the expenses of the
receivership, or any moneys remaining in the hands of a
mortgagee in possession or an assignee of the rents and
profits of the premises, shall be paid to the plaintiff to
the extent of the amount, if any, by which the judgment of
foreclosure and sale exceeds the amount paid for the
property upon the sale.
Sec. 1391. PROCEEDING FOR SHARE OF UNKNOWN HEIRS.
Sections 991 and 992 shall apply to an action to foreclose a
mortgage on real property.
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ARTICLE 14
FORECLOSURE OF MORTGAGE BY ADVERTISEMENT
Section 1401. When mortgage may be foreclosed.
1402. Notice of sale; how given.
1403. Notice of sale; how served.
1404. Duty of county clerk.
1405. Contents of notice of sale.
1406. Sale; how postponed.
1407. Sale; how conducted.
1408. Mortgagee or successor in interest
may purchase.
1411. Effect of sale.
1421. Affidavits on sale.
1422. When one affidavit suffices;
printed notice to be annexed.
1423. Affidavits may be filed and recorded.
1424. Note upon record of mortgage.
1425. Deed not necessary; when affidavits
not necessary; but purchaser may require
affidavits.
1431. Costs allowed.
1432. Expenses allowed.
1433. Taxation of costs and expenses.
1441. Surplus money to be paid into supreme court.
1442. Petition for surplus.
1443. Proceedings on petition.
1444. Order for distribution.
1445. Limitation of sections relating to
surplus money.
1451. Delivery of certain affidavits to purchaser.
1461. Application of this article to
mortgages of the state.
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Sec. 1401. WHEN MORTGAGE MAY BE FORECLOSED.
A mortgage upon real property situated within the state,
containing therein a power to the mortgagee, or any other person,
to sell the mortgaged property, upon default being made in a
condition of the mortgage, may be foreclosed in the manner
prescribed in this article, where the following requisites
concur:
1. Default has been made in a condition of the mortgage,
whereby the power to sell has become operative.
2. An action has not been brought to recover the debt secured
by the mortgage, or any part thereof; or, if such an action
has been brought, it has been discontinued, or final
judgment has been rendered therein against the plaintiff, or
an execution, issued upon a judgment rendered therein in
favor of the plaintiff has been returned wholly or partly
unsatisfied.
3. The mortgage has been recorded in the proper book for
recording mortgages, in the county wherein the property is
situated.
4. The first notice required by subdivision 1 of section 1402
is published within the time in which an action could be
maintained to foreclose such mortgage.
Sec. 1402. NOTICE OF SALE; HOW GIVEN.
The person entitled to execute the power of sale must give notice
in the following manner, that the mortgage will be foreclosed by
a sale of the mortgaged property, or a part thereof, at a time
and place specified in the notice:
1. A copy of the notice must be published, at least once in
each of the twelve weeks immediately preceding the day of
sale, in a newspaper published in the county or in a
municipal corporation a part of which is within the county
in which the property to be sold, or a part thereof, is
situated.
2. A copy of the notice must be fastened up, at least eighty-
four days before the day of sale, in a conspicuous place, at
or near the entrance of the building where the county court
of each county, wherein the property to be sold is situated,
is directed to be held; or, if there are two or more such
buildings in the same county, then in a like place at or
near the entrance of the building nearest to the property;
or, within any county in the city of New York, in a like
place at or near the entrance of the building where the
trial and special terms of the supreme court are directed by
law to be held.
3. A copy of the notice must be delivered, at least eighty-four
days before the day of sale, to the clerk of each county
wherein the mortgaged property, or any part thereof, is
situated.
4. A copy of the notice must be served, as prescribed in
section 1403, upon the mortgagor, or, if he is dead, upon
his executor or administrator, if an executor or
administrator has been appointed, and also upon his heirs,
providing he died the owner of the mortgaged premises. A
copy of the notice may also be served in like manner upon a
subsequent grantee or mortgagee of the property whose
conveyance was recorded, in the proper office for recording
it in the county, at the time of the first publication of
the notice of sale; upon the wife or widow of the mortgagor,
and the wife or widow of each subsequent grantee whose
conveyance was so recorded, then having an inchoate or
vested right of dower, or an estate in dower, subordinate to
the lien of the mortgagee; or in the event of the death of
the subsequent grantee, who was at the time of his death the
owner of the mortgaged premises, then upon his heirs or upon
any person then having a lien upon the property, subsequent
to the mortgage, by virtue of a judgment or decree duly
docketed in the county clerk's office and constituting a
specific or general lien upon the property. The notice
specified in this section must be subscribed by the person
entitled to execute the power of sale, unless his name
distinctly appears in the body of the notice, in which case
it may be subscribed by his attorney or agent.
Sec. 1403. NOTICE OF SALE; HOW SERVED.
Service of notice of the sale, as prescribed in subdivision 4 of
section 1402 must be made as follows:
1. Upon the mortgagor, his wife, widow, executor, or
administrator, or a subsequent grantee of the property,
whose conveyance is upon record, or his wife or widow, by
delivering a copy of the notice, as prescribed by law for
delivery of a copy of a summons in a civil action in a court
of record, in order to make personal service thereof upon
the person to be served, or by leaving a copy of such
notice, addressed to the person to be served, at his
dwelling-house, with a person of suitable age and
discretion, at least fourteen days before the day of sale.
If said mortgagor is a foreign corporation, or being a
natural person, he, or his wife, widow, executor or
administrator, or a subsequent grantee of the property whose
conveyance is upon record, or his wife or widow, is not a
resident of or within the state, then service thereof may be
made upon them in like manner without the state, at least
twenty-eight days prior to the day of sale.
2. Upon any other person, either in the same method, or by
depositing a copy of the notice in the post-office, properly
inclosed in a postpaid wrapper, directed to the person to be
served, at his place of residence, at least twenty-eight
days before the day of sale.
Sec. 1404. Duty of county clerk.
A county clerk, to whom a copy of a notice of sale is delivered
as prescribed in subdivision 3 of section 1402, must forthwith
affix it in a book kept in his office for that purpose; must make
and subscribe a minute, at the bottom of the copy, of the time
when he received and affixed it; and must index the notice to the
name of the mortgagor.
Sec. 1405. CONTENTS OF NOTICE OF SALE.
The notice of sale must specify:
1. The names of the mortgagor, of the mortgagee, and of each
assignee of the mortgage.
2. The date of the mortgage, and the time when, and the place
where, it is recorded.
3. The sum claimed to be due upon the mortgage, at the time of
the first publication of the notice; and, if any sum secured
by the mortgage is not then due, the amount to become due
thereupon.
4. A description of the mortgaged property, conforming
substantially to that contained in the mortgage.
Sec. 1406. SALE; HOW POSTPONED.
The sale may be postponed from time to time. In that case a
notice of the postponement must be published, as soon as
practicable thereafter, in the newspaper in which the original
notice was published, and the publication of the original notice,
and of each notice of postponement, must be continued at least
once in each week, until the time to which the sale is finally
postponed.
Sec. 1407. SALE; HOW CONDUCTED.
The sale must be at public auction, in the day-time, on a day
other than Sunday or a public holiday, in a county in which the
mortgaged property, or a part thereof, is situated; except that,
where the mortgage is to the people of the state the sale may be
made at the Capitol. If the property consists of two or more
distinct farms, tracts, or lots, they must be sold separately;
and as many only of the distinct farms, tracts, or lots, shall be
sold, as it is necessary to sell, in order to satisfy the amount
due at the time of the sale, and the costs and expenses allowed
by law. But where two or more buildings are situated upon the
same city lot, and access to one is obtained through the other,
they must be sold together.
Sec. 1408. MORTGAGEE OR SUCCESSOR IN INTEREST MAY PURCHASE.
The mortgagee, or his assignee, or the legal representative of
either, may, fairly and in good faith, purchase the mortgaged
property, or any part thereof, at the sale.
Sec. 1411. EFFECT OF SALE.
A sale, made and conducted as prescribed in this article, to a
purchaser in good faith, is equivalent to a sale pursuant to
judgment in an action to foreclose the mortgage, so far only as
to be an entire bar of all claim or equity of redemption, upon,
or with respect to, the property sold, of each of the following
persons:
1. The mortgagor, his heir, devisee, executor or administrator.
2. Each person claiming under any of them, by virtue of a title
or of a lien by judgment or decree, subsequent to the
mortgage, upon whom the notice of sale was served, as
prescribed in this article.
3. Each person so claiming, whose assignment, mortgage, or
other conveyance was not duly recorded in the proper book
for recording the same in the county, or whose judgment or
decree was not duly docketed in the county clerk's office,
at the time of the delivery of a copy of the notice of said
sale to the clerk of the county; and the executor,
administrator, or assignee of such a person.
4. Every other person, claiming under a statutory lien or
incumbrance, created subsequent to the mortgage, attaching
to the title or interest of any person, designated in either
of the foregoing subdivisions of this section.
5. The wife or widow of the mortgagor, or of a subsequent
grantee, upon whom notice of the sale was served as
prescribed in this article, where the lien of the mortgage
was superior to her contingent or vested right of dower, or
her estate in dower.
Sec. 1421. AFFIDAVITS ON SALE.
An affidavit of the sale, stating the time when and the place
where the sale was made; the sum bid for each distinct parcel,
separately sold; the name of the purchaser of each distinct
parcel; and the name of the person or persons, court officer or
other officer, to whom the proceeds of the sale were paid, and
the sums thereof, must be made by the person who officiated as
auctioneer upon the sale. An affidavit of the publication of the
notice of sale, and of the notice or notices of postponement, if
any, may be made by the publisher or printer of the newspaper in
which they were published, or by his foreman or principal clerk.
An affidavit of the affixing of a copy of the notice, at or near
the entrance of the proper courthouse, may be made by the person
who so affixed it, or by any person who saw it so affixed at
least eighty-four days before the day of sale. An affidavit of
the affixing of a copy of the notice in the book kept by the
county clerk may be made by the county clerk, or by any person
who saw it so affixed at least eighty-four days before the day of
sale. An affidavit of the service of a copy of the notice upon
the mortgagor or upon any other person, upon whom the notice must
or may be served, may be made by the person who made the service.
Where two or more distinct parcels are sold to different
purchasers, separate affidavits may be made with respect to each
parcel, or one set of affidavits may be made for all the parcels.
Sec. 1422. WHEN ONE AFFIDAVIT SUFFICES; PRINTED NOTICE TO BE
ANNEXED.
The matters required to be contained in any or all of the
affidavits specified in section 1421 may be contained in one
affidavit, where the same person deposes with respect to them. A
printed copy of the notice of sale must be annexed to each
affidavit; and a printed copy of each notice of postponement must
be annexed to the affidavit of publication, and to the affidavit
of sale. But one copy of the notice suffices for two or more
affidavits, when they all refer to it and are annexed to each
other and filed and recorded together.
Sec. 1423. AFFIDAVITS MAY BE FILED AND RECORDED.
The affidavits specified in sections 1421 and 1422 may be filed
in the office for recording deeds and mortgages, in the county
where the sale took place. They must be recorded at length by the
officer with whom they are filed, in the proper book for
recording deeds. The original affidavits, so filed, the record
thereof, and a certified copy of the record, are presumptive
evidence of the matters of fact therein stated, with respect to
any property sold which is situated in that county. Where the
property sold is situated in two or more counties, a copy of the
affidavits, certified by the officer with whom the originals are
filed, may be filed and recorded in each other county, wherein
any of the property is situated. Thereupon the copy and the
record thereof have the like effect, with respect to the property
in that county, as if the originals were duly filed and recorded
therein.
Sec. 1424. NOTE UPON RECORD OF MORTGAGE.
A clerk or register who records any affidavits, or a certified
copy thereof, filed with him, must make a note upon the margin of
the record of the mortgage in his office, referring to the book
and page, or the copy thereof, where the affidavits are recorded.
Sec. 1425. DEED NOT NECESSARY; WHEN AFFIDAVITS NOT NECESSARY;
BUT PURCHASER MAY REQUIRE AFFIDAVITS.
The purchaser of the mortgaged premises, upon a sale conducted as
prescribed in this article, obtains title thereto, against all
persons bound by the sale, without the execution of a conveyance.
Except where he is the person authorized to execute the power of
sale, such a purchaser also obtains title, in like manner, upon
payment of the purchase-money and compliance with the other terms
of sale, if any, without the filing and recording of the
affidavits, as prescribed in section 1423. But he is not bound to
pay the purchase-money until the affidavits, specified in
sections 1421 and 1422, with respect to the property purchased by
him, are filed, or delivered or tendered to him for filing.
Sec. 1431. COSTS ALLOWED.
The following costs, in addition to the expenses specified in
section 1432, are allowed in proceedings taken as prescribed in
this article:
1. For drawing a notice of sale, a notice of the postponement
of a sale, or an affidavit, made as prescribed in this
article, for each folio, twenty-five cents; for making each
necessary copy thereof for each folio, thirteen cents.
2. For serving each copy of the notice of sale, required or
expressly permitted to be served by this article, and for
affixing each copy thereof, required to be affixed upon the
courthouse, as prescribed in this article, one dollar.
3. For superintending the sale, and attending to the execution
of the necessary papers, ten dollars, and in addition
thereto the following percentages upon the amount due upon
the first publication of the notice of sale:
a. Upon a sum not exceeding two hundred dollars, ten per
centum;
b. Upon an additional sum not exceeding four hundred
dollars, five per centum;
c. Upon an additional sum not exceeding one thousand
dollars, two per centum.
Sec. 1432. EXPENSES ALLOWED.
The sums actually paid for the following services, not exceeding
the fees allowed by law for those services, are allowed in
proceedings taken as prescribed in this article:
1. For publishing the notice of sale, and the notice or notices
of postponement, if any, for a period not exceeding twenty-
four weeks.
2. For the services specified in section 1404.
3. For recording the affidavits; and also, where the property
sold is situated in two or more counties, for making and
recording the necessary certified copies thereof.
4. For necessary postage and searches.
Sec. 1433. TAXATION OF COSTS AND EXPENSES.
The costs and expenses must be taxed, upon notice, by the clerk
of the county where the sale took place, upon the request and at
the expense of any person interested in the payment thereof. Such
costs and expenses shall be taxed, and such taxation may be
reviewed, in the same manner as costs in a civil action in the
supreme court.
Sec. 1441. SURPLUS MONEY TO BE PAID INTO SUPREME COURT.
An attorney or other person who receives any money, arising upon
a sale made as prescribed in this article, must, within ten days
after he receives it, pay into the supreme court the surplus,
exceeding the sum due and to become due upon the mortgage and the
costs and expenses of the foreclosure, in like manner and with
like effect as if the proceedings to foreclose the mortgage were
taken in an action brought in the supreme court and triable in
the county where the sale took place.
Sec. 1442. PETITION FOR SURPLUS.
A person who had, at the time of the sale, an interest in or lien
upon the property sold, or a part thereof, may, at any time
before an order is made as prescribed in section 1444, file in
the office of the clerk of the county where the sale took place a
petition stating the nature and extent of his claim, and praying
for an order directing the payment to him of the surplus money,
or a part thereof.
Sec. 1443. PROCEEDINGS ON PETITION.
A person filing a petition as prescribed in section 1442 may,
after the expiration of twenty days from the day of sale, apply
to the supreme court, at a term held within the judicial district
embracing the county where his petition is filed, for an order
pursuant to the prayer of his petition. Notice of the application
must be served, in the manner prescribed by law for the service
of a paper upon an attorney in a civil action, in a court of
record, upon each person who has filed a like petition, at least
eight days before the application; and also upon each person,
upon whom a notice of sale was served, as shown in the affidavit
of sale, or upon his executor or administrator. But if it is
shown to the court, by affidavit, that service upon any person
required to be served cannot be so made with due diligence,
notice may be given to him in any manner which the court directs.
Sec. 1444. ORDER FOR DISTRIBUTION.
Upon the presentation of the petition, with due proof of a notice
of application, the court must make an order referring it to a
suitable person to ascertain and report the amount due to the
petitioner, and to each other person, which is a lien upon the
surplus money; and the priorities of the several liens thereupon.
Upon the coming in and confirmation of the referee's report, the
court must make such an order, for the distribution of the
surplus money, as justice requires. A tenant for life or for
years in the real property sold is entitled to receive from the
surplus, in satisfaction of his estate or interest, either a sum
in gross or the earnings of a sum invested for his benefit. The
determination as to whether a sum in gross or the earnings of a
sum invested shall be awarded to the owner of such particular
estate shall be governed by the provisions with respect to the
proceeds of a sale in partition.
Sec. 1445. LIMITATION OF SECTIONS RELATING TO SURPLUS MONEY.
Sections 1441 through 1444 do not apply to surplus money arising
upon the sale of real property of which a decedent died seized
where letters testamentary or letters of administration, upon the
decedent's estate, were, within two years before the sale, issued
from a surrogate's court within the state, having jurisdiction to
issue them.
Sec. 1451. DELIVERY OF CERTAIN AFFIDAVITS TO PURCHASER.
Each county clerk and register in this state, in whose office
affidavits in foreclosure of mortgages by advertisement, or the
certified copies thereof, have been or shall be filed and
recorded pursuant to the provisions of this article, is hereby
authorized to deliver the same to the purchaser of the mortgaged
property on the foreclosure sale, and such purchaser shall be
entitled to such delivery.
Sec. 1461. APPLICATION OF THIS ARTICLE TO MORTGAGES OF THE
STATE.
This article does not affect any provision of law, inconsistent
therewith, especially relating to the foreclosure of mortgages to
the people of the state, or to the commissioners for loaning
certain moneys of the United States.
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ARTICLE 15
ACTION TO COMPEL THE DETERMINATION OF A CLAIM
TO REAL PROPERTY
Section 1501. Who may maintain an action.
1503. Action to determine claims where
foreclosure of mortgage was void or voidable.
1511. Additional parties.
1513. Guardians ad litem.
1515. Complaint.
1517. Answer.
1519. Proceedings.
1521. Judgment.
1522. Accounting in certain cases.
1523. Judgment of foreclosure in certain cases.
1531. Effect of judgment.
1541. Article applies to corporations and
to the people of the state of New York.
1551. Effect of article.
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Sec. 1501. WHO MAY MAINTAIN AN ACTION.
1. Where a person claims an estate or interest in real
property; or where he claims such estate or interest as
executor or administrator of a deceased person; or where a
municipal corporation has purchased an estate or interest in
real property at a sale conducted by it for unpaid taxes
against the property and the time within which redemption
from such sale may be made has expired and such municipal
corporation claims it; such person or municipal corporation,
as the case may be, may maintain an action against any other
person, known or unknown, including one under disability as
hereinafter specified, to compel the determination of any
claim adverse to that of the plaintiff which the defendant
makes, or which it appears from the public records, or from
the allegations of the complaint, the defendant might make;
provided, however, that where the estate or interest claimed
by the plaintiff is for a term of years, the action may not
be maintained unless the balance remaining of such term of
years is not less than five.
2. Such action may be maintained, even though the defendant's
claim appears to be invalid on its face, or the court may
have to determine the death of a person, or any statutory
limitation of time, or any other question of fact or law
upon which an adjudication of the adverse claims of the
parties may depend.
3. An action against a woman who claims a right of dower in the
whole or a part of the property cannot be commenced until
the expiration of four months after the death of defendant's
husband.
4. Where the period allowed by the applicable statute of
limitation for the commencement of an action to foreclose a
mortgage, or to enforce a vendor's lien, has expired, any
person having an estate or interest in the real property
subject to such encumbrance may maintain an action against
any other person or persons, known or unknown, including one
under disability as hereinafter specified, to secure the
cancellation and discharge of record of such encumbrance,
and to adjudge the estate or interest of the plaintiff in
such real property to be free therefrom; provided, however,
that no such action shall be maintainable in any case where
the mortgagee, holder of the vendor's lien, or the successor
of either of them shall be in possession of the affected
real property at the time of the commencement of the action.
In any action brought under this section it shall be
immaterial whether the debt upon which the mortgage or lien
was based has, or has not, been paid; and also whether the
mortgage in question was, or was not, given to secure a part
of the purchase price.
5. The interest had by any mortgagee or contract vendee of real
property or by any successor in interest of either of them,
is an "interest in real property" as that phrase is used in
this article of the real property actions and proceedings
law.
Sec. 1503. ACTION TO DETERMINE CLAIMS WHERE FORECLOSURE OF
MORTGAGE WAS VOID OR VOIDABLE.
When real property has been sold pursuant to a judgment in an
action to foreclose a mortgage under article 13 of this chapter
or pursuant to article 14 of this chapter, or has been conveyed
to the mortgagee or the designee of such mortgagee by deed in
lieu of foreclosure, and it appears from the public records or
from the allegations of the complaint that such judgment, sale or
conveyance was or may have been, for any reason, void or voidable
as against any person, including an owner of the real property
mortgaged, the purchaser or such mortgagee or designee, or the
successor of any such person, in possession of such real
property, may maintain an action as provided in this article to
determine the right of any person to set aside such judgment,
sale or conveyance or to enforce an equity of redemption or to
recover possession of the property, or the right of any junior
mortgagee to foreclose a mortgage. Such action may be maintained
even though an action against the defendant to foreclose the
mortgage under which the judgment, sale or conveyance was made,
or to extinguish a right of redemption, would be barred by the
statutes of limitation.
Sec. 1511. ADDITIONAL PARTIES.
1. In an action brought under this article, the person in
possession shall be made a party to the action, and when
such person claims the right of possession, or an interest
in the real property, under another, such other person shall
also be made a party.
2. Where it appears to the court that a person not a party to
the action may have an estate or interest in the real
property which may in any manner be affected by the
judgment, the court, upon application of such person, or of
any party to the action, or on its own motion, may direct
that such person be made a party.
Sec. 1513. GUARDIANS AD LITEM.
If it shall appear by the complaint or is otherwise made to
appear to the court at any time before a final judgment, that a
defendant is or might be an infant, or incompetent to manage
himself or his affairs, or that a future interest in the affected
real property has been so limited that as yet there are neither
certain nor presumptive owners thereof in being or ascertained,
such court shall appoint a guardian ad litem who shall represent
and protect such infant or incompetent, or the possible interests
of the person or persons who eventually may become entitled to
such real property or to an interest therein under such
limitation, and in case of the death or failure or inability of
such guardian to act, a successor, who shall appear for such
infant or incompetent or for such possible interests until the
termination of such action.
Sec. 1515. COMPLAINT.
1. The complaint must state that the action is brought pursuant
to this article and must set forth facts showing:
a. The plaintiff's estate or interest in the real
property, the particular nature of such estate or
interest, and the source from or means by which the
plaintiff's estate or interest immediately accrued to
him; and if his estate or interest therein is for a
term of years, that the balance remaining of such term
of years is not less than five.
b. That the defendant claims, or that it appears from the
public records or from the allegations of the
complaint, that the defendant might claim an estate or
interest in the real property, adverse to that of the
plaintiff, and the particular nature of such estate or
interest. Where the people of the state of New York are
made a party defendant, as provided in this article,
the summons and complaint must be served upon the
attorney-general who must appear in behalf of the
people, and the complaint shall set forth detailed
facts showing the particular nature of the estate or
interest and the reason for making the people a party
defendant. Upon failure to state such facts, the
complaint shall be dismissed as to the people of the
state of New York.
c. Whether any defendant is known or unknown, and whether
any defendant is or might be an infant, mentally
retarded, mentally ill or an alcohol abuser.
d. Whether the judgment will or might affect a person or
persons not in being or ascertained at the commencement
of the action, who by any contingency contained in a
devise or grant or otherwise, could afterward become
entitled to a beneficial estate or interest in the
property involved; and whether every person in being
who would have been entitled to such estate or interest
if such event had happened immediately before the
commencement of the action is named as a party thereto.
2. The complaint must describe the property claimed with common
certainty, by setting forth the name of the township or
tract and the number of the lot, if there is any, or in some
other appropriate manner, so that from the description
possession of the property claimed may be delivered where
the plaintiff is entitled thereto, and may contain an
allegation that no personal claim is made against any
defendant other than a defendant who shall assert a claim
adverse to the claim of the plaintiff set forth in the
complaint. The demand for judgment may be to the effect that
the defendant and every person claiming under him be barred
from all claim to an estate or interest in the property
described in the complaint, or that possession be awarded
the plaintiff, or it may combine two or more of said demands
with other demand for appropriate relief.
3. In an action brought as specified in subdivision 3 of
section 1501, if the complaint admits the defendant's right
of dower in the property described therein, or in any part
thereof, it must demand judgment that her dower be
admeasured.
Sec. 1517. ANSWER.
The defendant may, in his answer, deny any material allegation of
the complaint controverted by him, or any knowledge or
information thereof sufficient to form a belief, or may set forth
facts constituting a defense; and thereupon he may demand
judgment dismissing the complaint. He may also set forth facts as
a counterclaim for the same cause of action; or the defendant may
set forth facts showing that he has an estate or interest in said
property; and thereupon he may demand any judgment to which he
would be entitled in an action brought by him to recover that
estate or to enforce in any manner the interest which he asserts
in such property; or he may combine any two or more of said
demands.
Sec. 1519. PROCEEDINGS.
1. In an action maintained under this article, the proceedings
shall be governed by the provisions regulating civil
actions, except as otherwise provided in this article.
2. When service of the summons on any defendant is made by
publication, the order for such service shall direct that
any papers required by such order to be mailed to such
defendant shall be sent by registered mail, and when such
mailing is required shall also direct that an affidavit, by
or on behalf of the plaintiff, be filed stating that such
papers were mailed as required by such order.
3. Whenever a claim of right to immediate possession is in
issue, the person in possession shall be presumed to have
the right to such possession, but such presumption may be
rebutted.
4. Where any party claims the real property in question, or any
part thereof, by virtue of an estate in reversion or in
remainder, whether vested or contingent, and the verdict,
report, or decision finds that he has such an estate, it
must specify the time when, or the contingency upon which,
he will be entitled to possession.
5. Where the complaint demands, as provided in subdivision 3 of
section 1515 of this article, that the defendant's dower be
admeasured, and the defendant does not, by her answer, set
forth facts showing that she is entitled to a greater right
of dower, or another estate or interest in the property,
than that admitted by the plaintiff, and demand judgment
therefor, as if she were the plaintiff in an action for
dower, the court must render an interlocutory judgment,
directing her dower to be admeasured, with or without
damages for its detention, as in an action for dower. The
subsequent proceedings shall be the same, as if the
defendant had, as plaintiff, recovered an interlocutory
judgment in an action for dower.
Sec. 1521. JUDGMENT.
1. Final judgment in the action shall declare the validity of
any claim to any estate or interest established by any party
to the action. The judgment shall also declare that any
party whose claim to an estate or interest in the property
has been adjudged invalid, and every person claiming under
him, by title accruing after the filing of the judgment-
roll, or of the notice of the pendency of the action, as
prescribed by law, be forever barred from asserting such
claim to an estate or interest the invalidity of which is
established in the action, and may direct that any
instrument purporting to create any such estate or interest
be delivered up or cancelled of record or be reformed of
record as the facts may require. Judgment may also be given
awarding possession of real property to any party together
with his damages for the withholding of such property and
two or more of such forms of judgment may be awarded in the
same action.
2. If one of the parties to the action is the people of the
state and the judgment adversely affects the title, interest
or claim of the people of the state based upon a tax deed,
the judgment shall also provide in effect as follows:
a. That the people of the state of New York shall have a
lien upon such real property or part thereof described
in such tax deed, prior and superior to all other
liens, (1) for the amount of the unpaid taxes not
adjudged illegal in such action for which such real
property was sold or liable to be sold in the first
instance and for which such tax deed was issued,
together with fees, charges and interest; (2) for the
amount of the unpaid taxes not adjudged illegal in such
action for which such real property was subsequently
sold or liable to be sold, together with fees, charges
and interest; (3) for the amount of all taxes, fees and
charges admitted or paid by the people upon such real
property to the date of the entry of such judgment,
together with interest thereon from the date of such
admission or payment. In the determination of the
amount of such lien, establishment of payments of taxes
on said land by the adjudged or admitted owner of the
property during any of the same years in which payments
were also made by the people of the state of New York
shall reduce the lien of the people by the larger of
the two tax payments for each of the years affected by
duplicate payments, and in the event that wholly
identical areas are not affected by the duplicate
payments the court shall have power to apportion and
adjust the amount of the lien as equity may require;
b. That the people of the state of New York may foreclose
such lien as a mortgage on real property is foreclosed,
provided such lien remains unpaid after the expiration
of one year from the entry of such judgment.
The remedy provided by this subdivision for recovery of tax
payments shall be in addition to any other remedy now or
hereafter available in law or in equity.
3. If a judgment described in subdivision 1 or subdivision 2 is
taken upon the defendant's default in appearing or pleading,
it shall not award costs to either party, unless it be taken
upon a default in answering after the decision of a motion
addressed to the complaint. A defendant against whom no
personal claim is made in the complaint shall not be
entitled to costs unless awarded by the court when such
defendant asserts in his answer and establishes a claim in
said lands adverse to the claim of the plaintiff in said
action.
4. Where a verdict, report, or decision is rendered, as
prescribed by subdivision 4 of section 1519, final judgment
to that effect must be rendered accordingly, without
damages. In such a case, an execution for the delivery of
the possession of the property may be issued upon the
judgment; but only by the special order of the court, made
upon an application by the defendant, or a person claiming
under him, and upon satisfactory proof that the time has
arrived when, or the contingency has happened upon which,
the applicant is entitled to possession by the terms of the
judgment.
5. Where the judgment directs that an instrument be delivered
up, cancelled or reformed of record, or that real property
be conveyed, if the direction is disobeyed, the court, by
order, besides punishing the disobedience as a contempt, may
require the sheriff to take, and deposit or deliver, the
instrument or to convey the real property, or to perform the
required acts in conformity with the direction of the court.
Sec. 1522. ACCOUNTING IN CERTAIN CASES.
In an action brought under section 1503 the court shall direct
such accounting as justice requires in the circumstances for
rents and profits of the property or the value of the use and
occupation during the period subsequent to the original sale or
conveyance in lieu of foreclosure during which possession of the
property was held by the plaintiff or by any other party to the
action.
Sec. 1523. JUDGMENT OF FORECLOSURE IN CERTAIN CASES.
1. In an action under section 1503 if it shall appear to the
court that there was a defect in the original foreclosure
proceedings and such defect was not occasioned by the fraud
or willful neglect of the plaintiff, the judgment may
foreclose or reforeclose the mortgage pursuant to article 13
of this chapter, notwithstanding that an action to foreclose
the mortgage would otherwise be barred; provided, however,
that no recovery shall be granted for any residue of the
debt, remaining unsatisfied, if an action to foreclose the
mortgage would otherwise be barred.
2. If it shall appear to the court in any such action that the
defect in the foreclosure proceedings was not due to fraud
or willful neglect of the plaintiff and that the defendant
or the person under whom he claims was not actually
prejudiced thereby, the judgment may fix a time for
redemption of the property and provide that a failure to
redeem within such time shall thereafter preclude the
defendant from redeeming the property or claiming any right,
title or interest therein.
3. If a redemption of the property is ordered, the court must
direct that the value of any improvement to the property
made subsequent to the original sale or conveyance in lieu
of foreclosure shall be added in computing the amount
necessary to redeem the premises, in the same manner as if
the value of such improvements was a portion of the mortgage
debt.
4. If a new sale of the premises is ordered, the court may
include in the judgment a provision awarding to the
plaintiff the value of any improvements to the property made
subsequent to the original sale or conveyance in lieu of
foreclosure, in the same manner as if the value of such
improvements was a portion of the mortgage debt.
5. The relief provided for in subdivision two of this section
shall not be granted unless
a. the mortgage was executed after September 1, 1951, or
b. the defendant whose right title or interest will be
extinguished by failure to redeem the property within
the time fixed by the judgment held such right to
redeem only by virtue of a subordinate mortgage or
other lien, and an action to foreclose such right of
redemption would not be barred at the time this act
shall take effect.
The relief provided for in subdivision four of this section shall
not be granted unless the improvements were made after September
1, 1951, except to the extent that a recovery, allowance or
credit for or on account of the value of any improvements,
including improvements made prior to the effective date of this
act, might be granted, in any other action or proceeding, to the
person maintaining the action provided for in section 1503.
Sec. 1531. EFFECT OF JUDGMENT.
1. A final judgment in favor of either party, in an action
brought as prescribed in this article, is conclusive, as to
the title established in the action, against the other
party, known or unknown, including an infant, a mentally
retarded person, a mentally ill person, or an alcohol
abuser, and also against every person claiming from, through
or under that party, by title accruing after the filing of
the judgment roll, or of the notice of the pendency of the
action, as prescribed by law; also against each person not
in being or ascertained at the commencement of the action,
who by any contingency contained in a devise or grant or
otherwise, could afterward become entitled to a beneficial
estate or interest in the property involved, provided that
every person in being who would have been entitled to such
estate or interest if such event had happened immediately
before the commencement of the action is a party thereto, or
that a guardian ad litem is appointed, as prescribed by
section 1513.
2. A new trial of said action after judgment shall not be
granted as a matter of right, but the court may, in its
discretion in the interest of justice, grant a new trial
upon an application made by any party within one year after
said judgment. Upon any new trial of an action brought as
prescribed in this article, the record of the evidence given
upon the previous trial may be again offered to the court by
either party, and may be received in evidence, in case the
same evidence cannot be again procured. The courts may make
such rules and orders as to preserving the record of the
evidence given in such actions and perpetuating the proofs
produced therein, either with or without the awarding of any
other relief to the party whose proofs are so perpetuated,
as shall be necessary or proper, and may embrace such
directions in the judgment.
Sec. 1541. ARTICLE APPLIES TO CORPORATIONS AND TO THE PEOPLE
OF THE STATE OF NEW YORK.
An action may be maintained, as prescribed in this article, by or
against a corporation, or by or against an unincorporated
association, as if it were a natural person, or such an action
may be maintained by or against the receiver or other successor
of any such corporation or association, or by or against the
people of the state of New York, and the use of the masculine
gender or of the term person in this article includes the people
of the state of New York.
Sec. 1551. EFFECT OF ARTICLE.
Nothing contained in this article shall be construed to limit any
other remedy in law or equity.
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ARTICLE 16
JUDICIAL AUTHORIZATION OF SALE, LEASE, MORTGAGE,
ACQUISITION, EXCHANGE OR VOLUNTARY PARTITION
Section 1601. Application by trustee for court
authorization to mortgage, to lease, to sell,
to acquire or to exchange real property or
for confirmation of a lease of real property.
1602. Application by owner of present or
future interest for court authorization to
mortgage, to lease or to sell real property.
1603. Court to which application is to be made.
1604. When application shall be granted.
1605. Contents of petition.
1606. Notice of application.
1607. Service of notice upon presumptive
members of class.
1608. Guardians ad litem.
1609. Final order upon the application.
1610. Final order authorizing acquisition
or exchange of land or confirming lease;
execution and binding force.
1611. Final order; appointment of referee.
1612. Report of agreement for confirmation.
1613. Order of confirmation; contents and
subsequent procedures.
1614. Binding force of mortgage, sale or
lease duly made with judicial approval.
1615. Date of creation of affected interests.
1616. Application to compensation arising
out of appropriation of real property by the
state.
1641. Executors', fiduciaries' and
trustees' conveyances to certain corporations
in exchange for certain stocks and bonds
authorized and regulated.
1651. Proceedings for voluntary partition
of infant's, incompetent's or conservatee's
real property.
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Sec. 1601. APPLICATION BY TRUSTEE FOR COURT AUTHORIZATION TO
MORTGAGE, TO LEASE, TO SELL, TO ACQUIRE OR TO
EXCHANGE REAL PROPERTY OR FOR CONFIRMATION OF A
LEASE OF REAL PROPERTY.
1. When the assets of a trust include an interest in real
property, the trustee may apply to the court designated in
section 1603, and in the case of a testamentary trust, to
the court having jurisdiction thereof, for an order
authorizing such trustee to mortgage, to lease or to sell
such real property or a part thereof; or to acquire land
adjacent to such real property or to exchange a portion of
such real property for lands adjacent to such real property
when either such acquisition or exchange would tend to
improve the boundary lines of such real property; or to
confirm a lease for a term longer than ten years made by a
trustee of such real property without obtaining prior
authorization by a court.
2. An application for an order authorizing a trustee to acquire
land adjacent to real property in which the trustee has an
interest, or as to which he has a power of sale, may also be
made when such real property and the adjacent land to be
acquired have the same building or physically connected
buildings thereon.
Sec. 1602. APPLICATION BY OWNER OF PRESENT OR FUTURE INTEREST
FOR COURT AUTHORIZATION TO MORTGAGE, TO LEASE OR
TO SELL REAL PROPERTY.
When the ownership of real property is divided into one or more
possessory interests and one or more future interests, the owner
of any interest in such real property or in the proceeds to be
derived therefrom on a directed sale thereof, except the owner of
a possessory estate in fee simple absolute therein, may apply to
the court designated in section 1603 for an order directing that
said real property, or a part thereof, be mortgaged, leased or
sold. If any such owner is an infant or otherwise under
disability, the application can be made on behalf of such person,
by the person duly authorized by law to care for his property
interests.
Sec. 1603. COURT TO WHICH APPLICATION IS TO BE MADE.
An application made pursuant to the provisions of either section
1601 or section 1602 shall be made to a term of the supreme court
held within the judicial district in which the real property, or
a part thereof, is situated.
Sec. 1604. WHEN APPLICATION SHALL BE GRANTED.
The court to which an application has been duly made pursuant to
the provisions of either section 1601 or section 1602 is
authorized to grant such application upon such terms as to it
shall seem proper, if satisfied from the proceedings theretofore
duly had, that the act to be authorized is expedient; or that the
lease sought to be confirmed is one, the authorization of which
would be expedient. The granting of such an application is not
necessarily precluded by the fact that it is opposed by one or
more persons having interests in the affected real property; or
by the fact that the granting thereof will be in contravention of
a provision contained in the instrument creating some or all of
the interests in the affected real property.
Sec. 1605. CONTENTS OF PETITION.
An application made pursuant to the provisions of either section
1601 or section 1602 shall be by duly verified petition which
must contain the following:
1. A description of the affected real property with reasonable
certainty;
2. A specification of the rights, shares and interest in such
real property, and of the names of the owners thereof, as
far as the same are known to the petitioner, together with
the facts determining such interests and each of them;
3. The special facts alleged to make the granting of the
application proper in accordance with the provisions of
section 1604;
4. Any other allegation required by statute, or by rule of
court.
Sec. 1606. NOTICE OF APPLICATION.
1. The notice of an application made pursuant to the provisions
of either section 1601 or section 1602 shall be given to
each person in being who has an interest in the affected
real property, or in the proceeds to be derived therefrom
upon a directed sale thereof; or who is a beneficiary of a
trust created relative thereto; or who has a power to
appoint or to dispose of an interest therein, or in its
proceeds; or who is an appointee under such a power
theretofore exercised.
2. Such notice shall be given in the manner following:
a. If such person is a competent adult within this state,
by service upon him personally of a written notice
stating the time, place and purpose of the application,
at least eight days prior to the presentation thereof;
b. In all other cases in such manner as the court which
the application is to be made shall prescribe.
Sec. 1607. SERVICE OF NOTICE UPON PRESUMPTIVE MEMBERS OF
CLASS.
When an interest in the affected real property has been limited
to a class, service of the notice of the application upon those
persons in being who are the presumptive members of such class at
the moment immediately before the application is made shall be
sufficient service as to such interest. If no such presumptive
members of the class exist, the provisions of section 1608 apply.
Sec. 1608. GUARDIANS AD LITEM.
1. On the return day of the motion made pursuant to the
provisions of either section 1601 or section 1602 the court
shall appoint a guardian ad litem for any minor or other
person under disability who is a party to the proceeding and
is not represented by a duly acting guardian, committee or
conservator.
2. On the return day of the motion made pursuant to the
provisions of either section 1601 or section 1602, if it
appears that a future interest in the affected real property
has been so limited that as yet there are neither certain
nor presumptive owners thereof in being or ascertained, the
court shall appoint a guardian ad litem to represent and to
protect the possible interests of the person or persons who
eventually may become entitled to such real property, or to
an interest therein, under such limitation. The granting of
an application is not necessarily precluded by the fact that
as yet no person other than the applicant is in being, who
can acquire a beneficial or possessory interest in the
affected real property.
Sec. 1609. FINAL ORDER UPON THE APPLICATION.
After taking proof of the facts, either before the court or a
referee, and hearing the parties and fully examining into the
matter, the court must make a final order upon the application.
In case the application is granted in whole or in part, the final
order shall specify the real property to be mortgaged, leased,
sold, acquired, exchanged or as to which a previously made lease
is to be confirmed, and the terms and conditions upon which the
authorized transaction is to be consummated or approved.
Sec. 1610. FINAL ORDER AUTHORIZING ACQUISITION OR EXCHANGE OF
LAND OR CONFIRMING LEASE; EXECUTION AND BINDING
FORCE.
When the final order authorizes the acquisition or exchange of
land, the trustee, upon whose application the order was made,
shall execute the provisions of such order. Any acquisition or
exchange of land so made or any previously made lease which is
confirmed, shall have the same binding force upon the interests
of the beneficiaries of such trust and upon the interests of all
other persons in such real property as is stated in section 1614.
Sec. 1611. FINAL ORDER; APPOINTMENT OF REFEREE.
When the final order authorizes a mortgage, lease or sale upon
the application of a person who is not trustee, the court in such
final order must appoint a referee to execute the authorized
transaction. When the application has been made by a trustee,
such trustee shall execute the authorized transaction.
Sec. 1612. REPORT OF AGREEMENT FOR CONFIRMATION.
Before a mortgage, lease or sale is made pursuant to a final
order described in section 1609, the trustee or referee must
enter into an agreement therefor, subject to the approval of the
court, and must report this agreement to the court under oath.
Sec. 1613. ORDER OF CONFIRMATION; CONTENTS AND SUBSEQUENT
PROCEDURES.
1. When the agreement reported to the court pursuant to the
provisions of section 1612 appears to the court to conform
in all particulars to the final order authorizing the
transaction, an order shall be made approving and confirming
the agreement and directing the trustee or referee to
execute and to deliver the mortgage, lease or deed of such
real property which is required thereby. No order of
confirmation shall be withheld on the ground that the market
value of such real property has changed between the
execution of such agreement and the hearing of the
application for confirmation thereof.
2. The order of confirmation, in the discretion of the court,
shall direct the payment to each participant in the
proceeding of the reasonable disbursements made or incurred
by him in the course of the proceeding, and shall make such
reasonable allowances, as to the court seem proper, to
persons who have served in the proceeding as referee,
guardian ad litem, or counsel; and shall direct the mode of
payment of all these allowances.
3. The order of confirmation shall also include such provisions
as justice may require for the application, safeguarding,
management and distribution of the fund to be derived from
the ordered transaction. The statutory provisions applicable
to the safeguarding, management or distribution of the fund
produced by a sale in an action for partition shall apply to
the proceeds derived from a sale authorized by this section,
so far as this is practical.
Sec. 1614. BINDING FORCE OF MORTGAGE, SALE OR LEASE DULY MADE
WITH JUDICIAL APPROVAL.
A mortgage, lease or conveyance duly executed and delivered in
accordance with an order of confirmation, made pursuant to the
provisions of section 1613, binds the interests of the applicant
therefor and of all other persons who either are parties to such
proceeding or are represented therein or are not entitled to
notice thereof under the provisions of section 1606.
Sec. 1615. DATE OF CREATION OF AFFECTED INTERESTS.
The procedure authorized by sections 1601 through 1614 shall
apply equally to interests created on or after September 1, 1937;
to interests created before that date but subsequent to the
enactment of some statute, replaced by former sections one
hundred seven through one hundred seven-m of the real property
law, authorizing the like sale, mortgage, lease or other binding
of such interests by a judicially authorized conveyance; and to
all other interests, whenever created.
Sec. 1616. APPLICATION TO COMPENSATION ARISING OUT OF
APPROPRIATION OF REAL PROPERTY BY THE STATE.
1. The procedure authorized by sections 1601 through 1614 as to
a sale of real property, covering all created interests as
mentioned therein and qualified in section 1615, shall, so
far as practicable, apply also to an application concerning
payment of compensation arising out of any appropriation by
the state of real property or of any interest therein, for
public purpose, in the same manner that such procedure would
apply, but for such appropriation, to an application
thereunder for an order directing that the real property in
question, or a part thereof, be sold.
2. For the purpose, however, of the relief sought under the
provisions of this section, all references in this and in
any of the above enumerated sections to a trustee or a trust
shall be construed as relating only to a trust estate
created by an instrument other than a will and under which
the trustee has no valid power of sale over the subject
property. Where, however, a valid power of sale is given the
trustee under such instrument, he is hereby authorized to
execute the transaction in the same manner a testamentary
trustee may do under section two hundred fifty-c of the
surrogate's court act, and which execution, including all
releases given thereunder by such nontestamentary trustee,
shall in similar scope be binding and conclusive on all
persons and interests as covered thereby in said last
mentioned section.
3. In the case of any such appropriation where relief is sought
under this section, the relevant proof to be taken and the
hearing and examination to be had before final order under
the provisions of section 1609 shall be as to whether the
compensation offered by the state, or any agency or
department thereof, by way of a provisionally executed
agreement of adjustment or otherwise, for the total value of
such appropriated property or interest and of all legal
damages caused by such appropriation, represents the fair
market value of such property or interest and just
compensation therefor and for all legal damages caused by
such appropriation, including the damages, if any, sustained
by the entry upon, use or occupation of, or injury to, said
property by the state prior to completion of appropriation.
If the court is satisfied as to the adequacy of said offer,
it shall, in the final order in the proceeding, authorize
the applicant if acting as trustee, and, if not, then a
referee to be appointed thereunder to execute the authorized
transaction, to enter into or adopt any such agreement of
adjustment with, and in form submitted by, the state or any
agency or department thereof for the total compensation so
offered; and on report under oath to the court by such
trustee or referee of any such agreement of adjustment so
undertaken by either of them, if it appears to the court to
conform in all particulars to the final order authorizing
the transaction, an order shall be made approving and
confirming such agreement of adjustment and directing such
trustee or referee, upon consummation thereof, in behalf of
all persons in interest as to the property affected by said
appropriation, or as to the proceeds to be derived therefrom
in said transaction, who shall have become bound by said
proceeding under the provisions of section 1614 to execute
and deliver to the state and/or any agency or department
thereof, a release of all claims on the part of such persons
in interest with respect to the total compensation offered
as aforementioned, together with any and all other documents
and instruments which may be required by the state or any
agency or department thereof to give full effect to such
release, and which release and attendant documents and
instruments shall, upon such execution and delivery thereof,
become and remain binding and conclusive on all of the
aforesaid persons in interest.
4. Said order of confirmation shall, in the discretion of the
court, provide for payment out of said total compensation of
reasonable disbursements and of such allowances as to the
court may seem proper, in the manner and respectively to the
participants and persons mentioned in section 1613, and
shall also authorize said trustee or referee to receive the
net proceeds therefrom after such payment and to apply,
safeguard, manage and distribute said remaining fund as
directed in said order of confirmation and in accordance
with the relevant provisions of section 1613.
Sec. 1641. EXECUTORS', FIDUCIARIES' AND TRUSTEES' CONVEYANCES
TO CERTAIN CORPORATIONS IN EXCHANGE FOR CERTAIN
STOCKS AND BONDS AUTHORIZED AND REGULATED.
1. Whenever an executor, trustee, guardian of an infant,
committee of a person incompetent to manage himself or his
affairs, conservator of a person unable to care for his
affairs, or other person or persons acting in a fiduciary
capacity, or a life tenant, is authorized to sell any real
property or any interest therein pursuant to a power
contained in a deed or will, or pursuant to a judgment or
order of the supreme court in an action or special
proceeding pursuant to any provision of law, or pursuant to
a statutory power to sell or exchange any real property, or
any interest therein, or whenever a trustee of an express
trust is seized of a legal title to an undivided share or
interest in any real property, and the said property has
been or is about to be conveyed to a corporation formed or
to be formed for such purpose, and two-thirds in number and
amount of interest of the adult beneficiaries and also two-
thirds in number and amount of interest of the adult persons
having a vested interest or estate in possession, reversion
or remainder in such real property have agreed, or desire to
agree that their interests and estates shall be exchanged
for the stock and bonds or either the stock or bonds of such
corporation, then the said executor, trustee, guardian,
committee, conservator or other person or persons acting in
a fiduciary capacity, or the life tenant or tenants, may,
with the approval of the supreme court, convey such real
property or interest to such corporation in exchange for the
stock or bonds of such corporation, or a proportionate
amount thereof, provided, however, that such corporation
shall be prohibited by its certificate of incorporation from
investing in any stocks, bonds or other securities other
than real property which are not under the laws of this
state a proper subject for the investment of trust funds,
and provided further that if the interest of a trust estate
in any real property to be so exchanged is an undivided part
or share therein, such undivided part or share of the trust
estate may be so exchanged if it shall appear to the court
to be for the best interest of such estate.
2. The supreme court shall not grant an order permitting such
an exchange and conveyance unless it appears to the
satisfaction of such court that a written notice stating the
time and place of the application for such leave has been
served upon every beneficiary and also upon every person in
being having a vested interest or estate in possession,
reversion or remainder, in such real property at least eight
days before the making thereof, if such beneficiary or other
person is an adult within the state; or if a minor,
incompetent, conservatee, or absentee, until proof of the
service on such beneficiary or other person of such notice
as the court or a justice thereof prescribes.
3. The court shall appoint a guardian for any minor and for any
person unable to manage himself or his affairs who shall not
be represented by a committee or conservator duly appointed.
4. The application must be by petition duly verified, must be
made by the executor, trustee, guardian of an infant,
committee, conservator, or such other person or persons
acting in a fiduciary capacity, or a life tenant who has
been so authorized to sell or exchange, or by the trustee of
an express trust seized of a legal title to an undivided
share or interest in real property; and shall set forth the
reasons for such exchange and conveyance and the nature
thereof and the peculiar facts which make it proper that the
application shall be granted, but when the interest of a
trust estate in any real property is an undivided part or
share thereof, it shall be sufficient to show by such
petition that the exchange will be for the best interests of
such estate. After taking proof of the facts either before
the court or a referee, and hearing the parties and fully
examining into the matter, the court must direct judgment
upon the application. In case the application is granted,
the judgment must authorize the said executor, trustee,
guardian of an infant, committee, conservator, or other
person or persons acting in a fiduciary capacity or life
tenant, to make such exchange and conveyance upon such terms
and conditions as the court may therein prescribe.
5. Whenever it shall appear from the papers submitted upon the
application that there are conflicting claims in respect to
the ownership of or the right to sell and convey such real
property or any interest therein, the court may, within the
demand for relief as evidenced by the notice of application,
and if all adult beneficiaries, and also all adult persons
having a vested interest or estate in possession, reversion
or remainder in such real property under such conflicting
claims consent thereto, direct that the stock and bonds or
either the stock or bonds to be given by the corporation in
exchange for such real property or interest therein shall be
issued to and held by a trust company authorized to hold
moneys paid into court upon such terms and conditions and
with such powers as the court shall prescribe until the
further order of the court.
Sec. 1651. PROCEEDINGS FOR VOLUNTARY PARTITION OF INFANT'S,
INCOMPETENT'S OR CONSERVATEE'S REAL PROPERTY.
1. Where an infant, mentally retarded person, mentally ill
person, alcohol abuser or conservatee holds real property,
in joint tenancy or in common, the general guardian of the
infant, or the committee of the mentally retarded person,
mentally ill person, or alcohol abuser, or conservator of
the conservatee, may apply to the supreme court or to the
county court of the county wherein the real property is
situated, for authority to agree to a partition of the real
property. Where such application affects the interests of an
incompetent person or a conservatee who has been committed
to a state institution, and is an inmate thereof, notice of
such application must be given to the superintendent, acting
superintendent or state officer having special jurisdiction
over the institution where the incompetent person or
conservatee is confined. Irrespective of the location of any
real property held by an infant in joint tenancy or in
common, his general guardian may make such application to
the surrogate's court which appointed such guardian. A
certified copy of the decree entered in the surrogate's
court on such application must be recorded in the office of
the clerk of each county in which is situated property
affected by such decree.
2. Such an application must be by a petition, which must
describe the real property proposed to be partitioned; must
state the rights and interests of the several owners
thereof; must specify the particular partition proposed to
be made; and must be verified by affidavit. The court may
order notice of the application to be given to such persons
as it thinks proper.
3. If, after due inquiry into the merits of the application, by
a reference or otherwise, the court is of the opinion that
the interests of the infant, or of the mentally retarded
person, mentally ill person, alcohol abuser or conservatee,
will be promoted by the partition proposed, it may make an
order authorizing the petitioner to agree to the partition
proposed, and in the name of the infant, or of the mentally
retarded person, mentally ill person, alcohol abuser or
conservatee, to execute releases of his right and interest
in and to that part of the property which falls to the
shares of the other joint-tenants or tenants in common. The
court may, in its discretion, for the furtherance of the
interests of said infant, mentally retarded person, mentally
ill person, alcohol abuser or conservatee, direct partition
to be so made as to set off to him or them his or their
share in common with any of the other owners, provided the
consent in writing thereto of such owners shall be first
obtained.
4. Releases so executed have the same validity and effect, as
if they were executed by the person in whose behalf they are
executed, and as if the infant was of full age, or the
mentally retarded person, mentally ill person, or alcohol
abuser was of sound mind, and competent to manage his
affairs, or the conservatee was competent to manage his
affairs.
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ARTICLE 17
SPECIAL PROCEEDING FOR DISPOSITION OF REAL PROPERTY
OF INFANT, INCOMPETENT OR CONSERVATEE
Section 1701. Definitions.
1711. Grounds.
1712. By whom maintainable.
1721. Notice of petition.
1722. Contents of petition.
1731. Infant, incompetent or conservatee
a ward of court.
1741. Reference.
1742. Appraisal.
1743. Judgment.
1744. Security.
1745. Report and confirmation of
agreement and of conveyance.
1746. When particular estates to be
included in disposition.
1747. When reversionary estates to be
included in sale.
1751. Sale contrary to will or conveyance
prohibited.
1753. Effect of disposition.
1755. Proceeds of sale deemed real property.
1761. Distribution of proceeds of disposition.
1762. Distribution of proceeds to owner
of particular or reversionary estate.
1763. Distribution of proceeds upon
release of inchoate right of dower.
1764. Distribution of proceeds where
there is an interest of an infant not in
being.
1765. Distribution of proceeds to
guardian of infant, committee of incompetent
or conservator of conservatee.
1766. Distribution of proceeds on death
of infant, incompetent or conservatee.
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Sec. 1701. DEFINITIONS.
As used in this article:
1. The term "incompetent person" means a person incompetent to
manage his affairs of whose property a committee has been
appointed pursuant to section 78.07 of the mental hygiene
law.
2. The term "conservatee" means a person who has suffered
substantial impairment of his ability to care for his
property or has become unable to provide for himself or
others dependent upon him for support for whom a conservator
of his property has been appointed, pursuant to section
77.01 of the mental hygiene law.
3. The term "interest in real property" includes any term,
estate or other interest in real property, vested or
contingent, of an infant in being, an incompetent person, or
a conservatee including an inchoate right of dower and a
possibility of reverter, and also the contingent interest of
an infant not in being.
4. The term "possibility of reverter" means the possibility
that upon breach of a condition or termination of an estate
by limitation the right of re-entry will vest in, or real
property will revert to, an infant, incompetent person or
conservatee or his heirs solely or in common with others.
5. The term "dispose of" means to sell, convey, exchange,
mortgage, release or lease.
6. The term "guardian, committee or conservator" refers to the
general or testamentary guardian or guardian appointed by
deed of the property of the infant, or the committee of the
property of the incompetent person or patient appointed
pursuant to the provisions of section 78.03 or 78.07 of the
mental hygiene law, the conservator of the property of a
conservatee appointed pursuant to the provisions of article
seventy-seven of the mental hygiene law, or to the guardian
of the infant, incompetent person or conservatee appointed
as prescribed by this article.
Sec. 1711. GROUNDS.
In any of the following cases, a special proceeding may be
maintained to dispose of the real property or an interest in real
property of an infant, incompetent person or conservatee.
1. Where his personal property, together with the income of the
real property are insufficient for the payment of his debts
or for the maintenance and necessary education of himself
and his family.
2. Where his interests require or will be substantially
promoted by disposition, because the real property or
interest in real property is exposed to waste or
dilapidation, or is wholly or substantially unproductive, or
because funds are needed to preserve or to improve the same,
or because of other peculiar reasons or circumstances.
3. Where he is seized or possessed of the real property, or
interest in real property, by way of mortgage, or only in
trust for another.
4. Where a valid contract for the sale or conveyance of the
real property or interest in real property has been made,
but a conveyance thereof cannot be made because the person
in whom the title is vested is an infant, an incompetent, or
a conservatee.
5. Where his interest will be substantially promoted by
releasing or joining with others in releasing for a valuable
consideration the possibility of reverter.
6. Where his interest will be substantially promoted by the
exchange of a portion of his real property for lands
adjacent to such real property if such exchange would tend
to improve the boundary line of such real property.
Sec. 1712. BY WHOM MAINTAINABLE.
The special proceeding may be maintained by the general or
testamentary guardian of the property of the infant, by the
committee of the property of the incompetent person or the
conservator of the property of the conservatee, or by any
relative or other person in behalf of the infant, incompetent
person, or conservatee or by an infant of the age of fourteen
years or over in his own behalf.
The special proceeding may be maintained, in a case specified in
subdivisions 3 and 4 of section 1711, by a person entitled to the
conveyance; and, also, in a case specified in subdivision 4 of
that section, by the executor or administrator of the person who
made the contract, or of a person who died seized or possessed of
the real property or interest in real property, or by an heir or
devisee of either of those persons, to whom the real property or
interest in real property has descended or was devised. Where the
proceeding is in behalf of an infant of the age of fourteen years
or over the infant shall join therein.
Sec. 1721. NOTICE OF PETITION.
Notice of petition shall be given, in the discretion of the
court, to such persons and in such manner as the court may
direct. If the proceeding affects the interest of an incompetent
person or of a conservatee, notice shall be given to either the
committee of property or the conservator of property, and if the
incompetent person or conservatee has been committed to a state
institution and is an inmate thereof, also to the attorney-
general and to the director having jurisdiction over the
institution where the incompetent or conservatee is confined. If
the proceeding affects the interest of an infant who has a
general or testamentary guardian of the property, notice shall be
given to such guardian.
Sec. 1722. CONTENTS OF PETITION.
The petition shall state:
1. The name, age and residence of the infant, incompetent
person or conservatee.
2. The grounds of the proceeding.
3. A description of the real property or interest to be
disposed of and of the incumbrance, if any, thereon.
4. The name and residence of the guardian of the infant,
committee of the incompetent person or conservator of the
conservatee and, where a guardian ad litem is to be
appointed, the name and residence of the person proposed as
the guardian ad litem, the relationship he bears to the
infant, incompetent person, or conservatee and the security
proposed to be given.
5. In a proceeding pursuant to subdivision four of section
seventeen hundred eleven of this article, that the contract
was made after the advertisement of the real property for
sale for a period of four successive weeks by a notice of
sale posted conspicuously on the premises, and by
publication of a notice of sale in the manner prescribed by
section two hundred thirty-one of this chapter for
publication of a notice of sale of real property made in
pursuance of a judgment, provided, however, that the court
may, upon cause shown, shorten such time or dispense with
such advertisement.
Sec. 1731. INFANT, INCOMPETENT OR CONSERVATEE A WARD OF
COURT.
From the time of the filing of a petition, by or in behalf of an
infant, incompetent person or conservatee, praying for an order
to dispose of his real property, or interest in real property,
the infant, incompetent person or conservatee is considered a
ward of the court with respect to that real property or interest
and the income and proceeds thereof. The court shall have power
to make such orders as may be necessary to further justice and to
protect and conserve the rights and interests of the infant,
incompetent person or conservatee.
Sec. 1741. REFERENCE.
1. The court may appoint a referee to receive evidence and
report his opinion thereon.
2. The referee's report shall include conclusions as to: what,
if any, form, terms and conditions of disposition of the
real property or interest would be beneficial to the infant,
incompetent person or conservatee, and the reasons therefor;
whether the infant, incompetent person or conservatee is in
absolute need of some and what portion of the proceeds of
such disposition, for a purpose specified in the petition,
in addition to what he might earn by his own exertions; the
value of the property or interest to be disposed of,
specifically, as to each separate lot or parcel, with the
incumbrances, if any, thereon, and whether there is any
person entitled to dower or a life estate, or estate for
years.
Sec. 1742. APPRAISAL.
When the court deems it necessary for the protection of the
interests of the infant, incompetent person or conservatee, it
may appoint a competent, disinterested person as appraiser, who
after taking an oath fairly to appraise the real property, shall
go upon the premises, and make an appraisal of the property and
report the result thereof to the court. The fee of the appraiser
shall be fixed by the court and be included in the costs of the
proceedings. A transcript of the proof and the report of the
referee or appraiser, if any, shall be filed with the final
order.
Sec. 1743. JUDGMENT.
The judgment may direct that the real property, or interest in
real property, or a part thereof, be disposed of by the guardian,
committee or conservator and contain directions respecting the
time, manner and conditions of the disposition.
Sec. 1744. SECURITY.
1. Before the guardian, committee or conservator executes and
delivers the deed, mortgage, release or lease pursuant to
the judgment or receives any portion of the proceeds arising
from the transaction, he shall give security for the
faithful performance of his trust, for the paying over and
investing of and accounting for all moneys received by the
guardian, committee or conservator in the special proceeding
and for the observance of the provisions of law and the
directions of the court in relation to the trust. Such
security shall have the same force and effect as if it had
been filed before the guardian, committee or conservator
acted on behalf of the infant, incompetent person or
conservatee and the application to the court was made in the
proceeding.
2. The court may, by order, dispense wholly or in part with the
giving of security if the sureties on the undertaking, if
any, theretofore filed by the general or testamentary
guardian of the property of the infant, the committee of the
property of the incompetent person, or conservator of the
property of the conservatee as well as such guardian,
committee, or conservator consent to its extension to cover
the special proceeding, and the court deems such extended
undertaking sufficient to protect the interests of the
infant, incompetent person or conservatee in such
proceeding. The consent shall be in writing and shall be
filed with the order dispensing with the giving of security.
Sec. 1745. REPORT AND CONFIRMATION OF AGREEMENT AND OF
CONVEYANCE.
1. Before disposition of the property can be made pursuant to
the judgment, the guardian, committee or conservator must
enter into an agreement therefor, subject to the approval of
the court, and must report the agreement to the court under
oath. Such agreement may be made either before or after the
commencement of the proceeding, and if made and reported
prior to the entry of the judgment, such judgment may
include a confirmation thereof.
2. Upon the confirmation of the agreement, either by the
judgment or by a subsequent order, the guardian, committee
or conservator shall execute and deliver a deed, mortgage,
release or lease as directed by such judgment or order.
3. Where the judgment directs the execution of a conveyance in
the first instance for the purpose of fulfilling a contract,
or because the property is held by way of mortgage, or in
trust only, the guardian, committee or conservator executing
the conveyance shall report the conveyance to the court
under oath.
Sec. 1746. WHEN PARTICULAR ESTATES TO BE INCLUDED IN
DISPOSITION.
When the real property, or interest in real property, directed to
be sold is subject, absolutely or contingently, to a right of
dower or an estate for life, or for years, in the whole or any
part thereof, the person having the prior right or estate may
manifest in writing his consent, either to receive from the
proceeds of the sale a gross sum to be fixed according to the
principles of law applicable to annuities, in satisfaction of his
right or estate, or to have a proportionate share of the proceeds
of the sale invested, and the interest thereof paid to him, from
the time of the investment or of the commencement of his right or
estate, as justice requires, until the determination of his right
or estate. Upon filing the consent with the clerk, the judgment,
in the discretion of the court, may direct a sale of the entire
property to which the right or estate attaches.
Sec. 1747. WHEN REVERSIONARY ESTATES TO BE INCLUDED IN SALE.
When the interest of the infant, incompetent person or
conservatee, consists of a right of dower or an estate for life,
or for years, the judgment may authorize the guardian, committee
or conservator to join, with the person or persons holding the
reversionary estate, in a conveyance of the property to which the
interest attaches, so as to release the right of dower, or fully
convey the particular estate, on receiving from the proceeds of
the sale a gross sum in satisfaction of that interest, or a
proportionate part of the proceeds, to be invested until the
determination of the particular estate.
Sec. 1751. SALE CONTRARY TO WILL OR CONVEYANCE PROHIBITED.
Real property, or an interest in real property, shall not be
disposed of, as prescribed in this article, contrary to the
provisions of a will by which it was devised, or of a conveyance
or other instrument by which it was transferred, to the infant,
incompetent person or conservatee.
Sec. 1753. EFFECT OF DISPOSITION.
A deed, mortgage, release or lease made in good faith, as
prescribed in this article, upon an application in behalf of an
infant, incompetent person or conservatee, has the same validity
and effect as if executed by the person in whose behalf it was
executed, and as if the infant were of full age or the
incompetent person or conservatee were of sound mind and
competent to manage his affairs. It shall be valid and effectual
to vest in any purchaser an interest of an infant not in being at
the time of the said sale, and any mortgage so executed shall be
a valid lien and charge upon the contingent interest of an infant
not in being at the time of the execution and delivery of the
same. A release of an inchoate right to dower as authorized by
this article shall have the same effect as if the wife had joined
with the husband in a deed or conveyance of the property affected
thereby and had duly acknowledged the same in the manner required
by law to pass the estate of married women. The failure to
conduct the proceeding strictly in accordance with the provisions
of this article shall not invalidate the disposition if the
interests of the infant, incompetent person or conservatee have
not been prejudiced.
Sec. 1755. PROCEEDS OF SALE DEEMED REAL PROPERTY.
A sale of real property, or of an interest in real property other
than a possibility of reverter, of an infant or incompetent
person, does not give to the infant or incompetent person any
other or greater interest in the proceeds of the sale than he had
in the property or interest sold. Those proceeds are deemed
property of the same nature as the estate or interest sold until
the infant arrives at full age or the incompetency is removed.
The proceeds of the release of a possibility of reverter shall be
deemed and treated as if they were proceeds of real property of
which the infant was seized and possessed. If the incompetent
person dies after the sale, having specifically devised the
property sold, the provisions of section thirty-six of the
decedent estate law shall apply to the devise.
Sec. 1761. DISTRIBUTION OF PROCEEDS OF DISPOSITION.
1. After the disposition of real property as provided in this
article, the court shall direct the distribution of the
proceeds.
2. The court shall direct the payment from the proceeds of all
debts, in equal proportion, without giving a preference to a
debt founded upon a specialty or upon which judgment has
been taken.
3. The court shall direct the investment of any portion of the
proceeds belonging to the infant, incompetent person or
conservatee which is not needed for the payment of debts, or
the safe keeping, or the immediate maintenance and education
of himself or his family, or for the preservation or
improvement of his real property or his interest in real
property.
4. The court shall require a report, under oath, of the
disposition and investment of the proceeds to be made as
soon as practicable, and must compel periodical accounts to
be rendered thereafter by each person who is intrusted with
the proceeds or any part thereof.
Sec. 1762. DISTRIBUTION OF PROCEEDS TO OWNER OF PARTICULAR OR
REVERSIONARY ESTATE.
1. When real property has been disposed of so as to include a
particular reversionary estate, as provided in sections 1746
and 1747, the court shall direct that the value of such
estate be paid from the proceeds of disposition.
2. The manner of payment may be either in a gross sum or by the
investment of a just proportion of the proceeds until the
termination of the prior estate or the commencement of a
future estate.
3. If a prior estate has been included, income from the
invested proceeds shall be paid to the owner of such estate.
But no such payment shall be made nor shall any gross sum be
paid to such owner until an effectual release of the right
or estate of the person so consenting, executed to the
satisfaction of the court, and duly acknowledged or proved,
and certified, in like manner as a deed to be recorded, has
been filed with the clerk.
4. If a future estate has been included, the invested proceeds
shall be paid to the owner of such estate at the time of the
commencement thereof.
Sec. 1763. DISTRIBUTION OF PROCEEDS UPON RELEASE OF INCHOATE
RIGHT OF DOWER.
Where an inchoate right of dower is released as prescribed in
this article and such release is to accompany a sale by the
husband of the property to which the inchoate right of dower
attaches, the court shall make an order requiring one-third of
the amount realized on the sale of the property to which the
inchoate right of dower attached to be invested by the guardian,
committee or conservator, or paid into the court to be held for
the benefit of the husband during his life and upon his death for
the benefit of the wife during her life, or the court may direct
said amounts to be paid to the husband upon his giving an
undertaking in the amount of at least double the amount so
received for such release, conditioned for the repayment as the
court shall direct by his executors or administrators of such
amount upon the death of the husband, or the court may ascertain
the sum in gross representing the present value of such inchoate
right of dower and direct the payment of that sum to the
guardian, committee or conservator for the wife. Where an
inchoate right of dower is released as prescribed in this
article, and, at the time of the commencement of the proceeding,
the property to which the inchoate right of dower attaches has
already been sold by the husband, and the wife has not joined in
the conveyance or otherwise released her inchoate right of dower,
the court shall make an order that, as the consideration for the
release, or as part of the consideration therefor, there be paid
to the guardian, committee, or conservator or into the court an
amount to be fixed by the court as equal to one-third of the fair
market value of the property, to be invested by the guardian,
committee or conservator or held by the court for the benefit of
the person making such payment during the life of the husband,
and upon his death for the benefit of the wife during her life,
and upon her death to be returned to the person making such
payment or to his executors, administrators or assigns; or in
lieu of such payment, the court may allow an undertaking to be
given in the amount of at least double the amount so fixed as
equal to one-third of the fair market value of the property,
conditioned for the payment as the court shall direct, upon the
death of the husband leaving the wife surviving, of the said sum
so fixed as equal to one-third of the fair value of the property,
to be held for the benefit of the wife during her life and upon
her death to be returned to the person giving such undertaking or
to his executors, administrators or assigns; or, in lieu of such
payment or undertaking, the court may ascertain the sum in gross
representing the present value of such inchoate right of dower in
the fair market value of the property and direct the payment of
that sum to the guardian, committee or conservator for the wife.
Sec. 1764. DISTRIBUTION OF PROCEEDS WHERE THERE IS AN
INTEREST OF AN INFANT NOT IN BEING.
In case by any contingency, infants not in being may thereafter
become possessed of any interest in the real property disposed
of, the court, in case of a sale, shall cause the proceeds of the
sale, after paying the costs and expenses of the same, to be
placed at interest for the benefit of the persons who are or who
ultimately may be entitled to the same, and shall not authorize
the distribution of the same in advance of said contingency,
except upon a petition of some person entitled thereto and upon
filing an undertaking in such amount as the court shall direct,
conditioned that in case of any contingency by which any infant
not then in being shall thereafter become entitled to any of the
proceeds of the sale, that said petitioner will pay to said
person or persons his or their proportionate share of the money
so paid over to said petitioner. In the case of the mortgaging of
said real estate, the proceeds of the same, after paying costs
and expenses, shall be paid out and disbursed under the direction
of the court only for the purpose of paying lawful charges
thereon, or repairing, improving, building upon or otherwise
enhancing in value any real estate so mortgaged as aforesaid.
Sec. 1765. DISTRIBUTION OF PROCEEDS TO GUARDIAN OF INFANT,
COMMITTEE OF INCOMPETENT OR CONSERVATOR OF
CONSERVATEE.
1. Proceeds or income of proceeds invested as provided in
subdivision 3 of section 1761 may be paid on order of court
on such undertaking as it may require.
2. If the proceeds do not exceed one thousand dollars, the
court may direct that the same be paid to the father or
mother of the infant, or to some competent person with whom
the infant resides, or who has some interest in his welfare,
for the use and benefit of such infant.
3. In the case of an infant residing without the state, and
having in the state or country where he resides a general
guardian or person duly appointed under the laws of such
state or country to the control, and entitled by the laws of
such state or country to the custody, of the money of said
infant, the court, upon satisfactory proof of such facts and
of the sufficiency of the security given by such general
guardian or person in such state or country, by the
certificate of a judge of a court of record of such state or
country, or otherwise, may direct that the portion of such
infant arising upon a sale pursuant to this article shall be
paid over to such general guardian or person.
Sec. 1766. DISTRIBUTION OF PROCEEDS ON DEATH OF INFANT,
INCOMPETENT OR CONSERVATEE.
If the infant should die before arriving at full age, or the
incompetent person should die before the incompetency is removed,
or the conservatee should die before the conservatorship is
terminated not leaving any personal property, or not leaving
sufficient personal property to pay funeral expenses and expenses
that may be necessary or necessarily incurred, then in each case,
the proceeds of disposition of real property are to be deemed
personal property so far as may be necessary to pay the funeral
and other necessary expenses. The proceeds are to be paid, upon
order of the surrogate's court or court having jurisdiction of
the estate of the deceased, to an administrator appointed by the
surrogate to administer upon decedent's estate, and after paying
all funeral expenses and expenses of administration and any
indebtedness, the remainder, if any there be, upon the order of
the surrogate, shall be paid into the hands of the trustee who
held the same, to be distributed as the law directs.
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ARTICLE 18
SPECIAL PROCEEDING FOR RELEASE OF CLAIM AGAINST STATE OF INFANT
OR INCOMPETENT FOR APPROPRIATION OF REAL PROPERTY
Section 1801. Grounds.
1802. By whom maintained.
1803. Notice of petition.
1804. Contents of petition.
1805. Security.
1806. Judgment.
1807. Payment of compensation; release.
1808. Distribution of proceeds of compensation.
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Sec. 1801. GROUNDS.
In any case, where the person entitled to compensation from the
state, by reason of the appropriation by the state of real
property, or of any easement therein, or of a term, estate,
inchoate right of dower, or other right or interest in real
property, and of legal damages caused by any such appropriation,
and of damages sustained by any entry upon, use or occupation of,
or injury to such real property by the state prior to completion
of appropriation, is an infant, a person incompetent to manage
his affairs by reason of mental illness or other cause, or a
conservatee as designated in article seventy-seven of the mental
hygiene law, and whose interest in such real property or rights
thereunder as aforementioned is not governed by a trust expressed
in a will creating the estate nor subject to a valid power of
sale contained in such will which does not expressly prohibit the
giving of a release to the state because of such appropriation, a
special proceeding may be commenced in the county where the
appropriated property or a part thereof is situated, for leave to
release to the state the claim for compensation of such infant,
incompetent person or conservatee, in the manner provided in this
article, for the amount of consideration therefor offered by the
state. This article shall also apply to the contingent interest
of an infant not in being.
Sec. 1802. BY WHOM MAINTAINED.
1. Except as provided in subdivision two, the special
proceeding may be maintained only by the general or
testamentary guardian or guardian appointed by deed of the
property of the infant, or by the committee of the property
of the incompetent person, or by the conservator of the
property of a conservatee. Where it is maintained in behalf
of an infant of the age of fourteen years or upwards, the
infant must join therein.
2. Where the value of the claim does not exceed one thousand
dollars, the special proceeding may be maintained by the
father, or mother, or some competent person with whom the
infant, incompetent person or conservatee resides, or who
has some interest in his welfare. Where, however, there is
an existing general or testamentary guardian of the property
of such infant, or a committee of the property of such
incompetent person, or a conservator of the property of such
conservatee, the proceeding may be maintained only by such
representative.
Sec. 1803. NOTICE OF PETITION.
Notice of petition shall be given, in the discretion of the
court, to such persons and in such manner as the court may
direct.
Sec. 1804. CONTENTS OF PETITION.
The petition shall state:
1. The name and residence of the petitioner, the facts
concerning his appointment and qualification as a person by
whom the proceeding is maintainable, and a statement as to
the amount of any existing undertaking given by him in such
capacity then in force and effect, whether or not any such
existing undertaking includes the value of the property
appropriated. If an undertaking had been dispensed with by
the surrogate in any case where such property was derived by
the infant through his father or mother under the instrument
by which a guardian was appointed, such fact shall be
disclosed to the court.
2. The name, age and residence of the infant, incompetent or
conservatee.
3. The particulars with regard to such appropriation, including
the nature and extent of the property appropriated and a
description.
If a survey map has been filed in the appropriation
proceeding, a copy of such a map shall be attached to and
made part of the petition.
4. The nature and extent of the property, if any, entered upon,
used, occupied or injured by the state prior to completion
of such appropriation.
5. The amount offered by the state in full compensation.
6. The facts in relation to the value of the interest to be
released.
7. Whether any previous application has been made, and, if so,
the time and disposition.
8. Where the value of the claim does not exceed one thousand
dollars, that either the petitioner or a competent,
disinterested person acquainted with the facts, whose
affidavit is made a part of the petition, has made a careful
investigation of the facts relating to the offer, and that
as a result of such investigation he has found and verily
believes that the amount of compensation so offered by the
state, for the interest or undivided interest of said
infant, incompetent person, or conservatee represents the
fair market value of the property appropriated and just
compensation therefor and for the legal damages caused by
such appropriation, and the damages, if any, sustained by
the entry upon, use or occupation of, or injury to such
property by the state prior to completion of appropriation.
In any case involving an infant of the age of fourteen years
or upwards or a conservatee, his written consent to the
acceptance in his behalf of the amount so offered shall
accompany the petition, unless the aforesaid infant is
classed in the petition as an incompetent person, in which
event such consent shall not be required.
Sec. 1805. SECURITY.
On presentation of the petition, where the value of the claim
exceeds one thousand dollars, the court shall fix the amount of
security or additional security, if any, to be given by such
general or testamentary guardian, committee or conservator, for
the faithful performance of his trust, to cover the amount of
compensation to be received by the infant, incompetent or
conservatee because of such appropriation. The court shall
dispense with the giving of security, on facts submitted in the
petition, in any case where the surrogate had done likewise as to
such guardian under the provisions of the surrogate's court
procedure act with respect to the property so appropriated.
Sec. 1806. JUDGMENT.
Upon examining into the truth of the allegations of the petition,
and hearing the allegations and proofs of the parties, presented
orally or by affidavit, as to the value of the interest of the
infant, incompetent person or conservatee in the property so
appropriated, including the legal damages caused by such
appropriation, and the damages, if any, sustained by the entry
upon, use or occupation of, or injury to such property by the
state prior to completion of appropriation, and, upon inquiring
into the facts and circumstances and duly considering the matter,
if it shall appear to the satisfaction of the court that the
amount of compensation offered to be paid by the state represents
the fair market value of the property appropriated and just
compensation for the legal damages caused by such appropriation
and the damages, if any, sustained by the entry upon, use or
occupation of, or injury to such property by the state prior to
completion of appropriation, and that the interest of the infant,
incompetent person or conservatee will be substantially promoted
by releasing or joining with others in releasing any such claim
for the amount of compensation offered therefor by the state, the
court may render a judgment authorizing petitioner to enter into
an agreement with the state, in such form as may be submitted by
the state or any agency or department thereof, for the amount of
compensation offered by the state and approved by the court and
authorizing and directing petitioner to execute and deliver to
the state a release of such claim and any documents or
instruments as may be required by the state to give full effect
to such release and authorizing and directing petitioner to
receive the amount in full payment of such claim for
compensation.
Sec. 1807. PAYMENT OF COMPENSATION; RELEASE.
1. Upon the payment of such compensation by the state in the
manner provided by the judgment, the state shall be released
of and from any and all claims, damages and liability
arising from or growing out of such appropriation, and in
and to every matter and thing in anywise related to said
property so appropriated.
2. The failure to conduct the proceeding for the release of any
claim against the state of an infant, incompetent person or
conservatee as covered by this article, shall not invalidate
or render ineffective such release if the interests of the
infant, incompetent person or conservatee have not been
prejudiced.
Sec. 1808. DISTRIBUTION OF PROCEEDS OF COMPENSATION.
1. Where compensation exceeds one thousand dollars, it shall be
deemed property of the same nature, and the disposition
thereof shall be made in the same manner, as the disposition
of proceeds of a sale, mortgage, release or lease of real
property of infant or incompetent.
2. Where compensation does not exceed one thousand dollars,
after deducting therefrom the payment of any attorney's fees
and the expenses, if any as allowed by the court, the
proceeds shall be administered by the petitioner for the use
and benefit of the infant, incompetent person or
conservatee, including the application thereof for the
purposes, in the manner, under the limitations and through
the medium provided for in the mental hygiene law of the
state of New York and official rules and regulations adopted
pursuant thereto as to funds belonging to a patient, in any
case where such ward is an incompetent person or conservatee
confined as a patient to a state institution under the
jurisdiction of the department of mental hygiene of the
state of New York.
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ARTICLE 19
DISCHARGE OR EXTINGUISHMENT OF ENCUMBRANCES, CLAIMS AND INTERESTS
Section 1901. Release of rents reserved by leases
in perpetuity.
1911. Action to extinguish inchoate right of dower.
1921. Discharge of mortgage.
1921-a. Partial release from lien of
mortgaged premises.
1931. Discharge of record of ancient
mortgages presumed paid.
1932. Discharge of record of ancient
mortgage where time of maturity is dependent
on contingent event related to use of
premises.
1933. When county clerk or register to
discharge mortgage of record.
1941. When special proceeding to quiet
title may be maintained.
1942. Petition in special proceeding to
quiet title.
1943. Order for publication of notice to
persons interested.
1944. Hearing and final order upon non-
appearance of adverse claimants.
1945. Hearing and final order upon
appearance of adverse claimants.
1946. Notice of pendency to be filed and recorded.
1951. Extinguishment of non-substantial
restrictions on the use of land.
1953. Effect of certain special
limitations and conditions subsequent.
1954. Action to limit existing
possibilities of reverter and rights of entry
restricting the use of land.
1955. Modification or extinguishment of
certain restrictions on the use of land held
for charitable purposes.
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Sec. 1901. RELEASE OF RENTS RESERVED BY LEASES IN PERPETUITY.
1. Any person interested in lands held under a lease in
perpetuity, upon which no rent has been paid for at least
twenty years, may present his petition to the courts
mentioned in this section asking that it be declared that
the rents and reversion have been released to the owner of
the fee. Such petition shall be verified, shall describe the
lease and allege that the rents and reversion have been
released, and shall state such facts as the petitioner can
ascertain relative to the execution of a release and the
identity of the persons who would otherwise be the present
owners of the rents and reversion and the last known owner
thereof.
2. Such petition may be presented to the supreme court or to
the county court of the county where the lands are situated.
The court may thereupon order all persons interested to show
cause at a certain time and place why the rents and
reversion should not be declared to have been released. A
description of the lease and lands affected thereby and the
name of the last known owner of the rents and reversion
shall be specified in such order, and the order shall be
published in such newspaper or newspapers and for such time
as the court shall direct. The court may also direct the
order to be personally served upon such persons as it shall
designate.
3. The court may issue commissions to take the testimony of
witnesses and may refer the petition to a referee to take
and report proofs of the facts stated in the petition. Upon
being satisfied that the matters alleged in the petition are
true, the court may make an order declaring that the rents
and reversion have been released to the owner of the fee.
The nonpayment of rent under any such lease for twenty years
shall be presumptive evidence of such a release.
4. The entry of such order in the office of the clerk of the
county where such lands are situated shall have the same
effect as a release of such rents and reversion to such
owner then duly executed and recorded. The county clerk
shall note on the margin of the record of the original lease
a minute of the entry of such order.
Sec. 1911. ACTION TO EXTINGUISH INCHOATE RIGHT OF DOWER.
1. An owner of land subject to an inchoate right of dower may
maintain an action in the supreme court against the
possessor of such right to have the right extinguished. In
such action the court shall find the present cash value of
the inchoate right of dower according to the law applicable
to annuities and survivorships. It shall also determine
whether the payment to the defendant of the sum found, in
lieu of her right, would be unduly prejudicial to her. If
the court determines that such payment would not be unduly
prejudicial, the court, upon proof of payment of such sum to
the defendant or upon payment into court for her credit,
shall make an order declaring the inchoate right of dower
extinguished.
2. Nothing herein contained shall be construed to affect
section 967 or article 17 of this chapter, or section two
hundred and forty-eight of the surrogate's court act.
Sec. 1921. DISCHARGE OF MORTGAGE.
1. After payment of authorized principal, interest and any
other amounts due thereunder or otherwise owed by law has
actually been made, and in the case of a credit line
mortgage as defined in section two hundred eighty-one of the
real property law on written request, a mortgagee of real
property situate in this state, unless otherwise requested
in writing by the mortgagor or the assignee of such
mortgage, must execute and acknowledge before a proper
officer, in like manner as to entitle a conveyance to be
recorded, a satisfaction of mortgage, and thereupon within
forty-five days arrange to have the satisfaction of
mortgage: (a) presented for recording to the recording
officer of the county where the mortgage is recorded, or (b)
if so requested by the mortgagor or the mortgagor's
designee, to the mortgagor or the mortgagor's designee. The
mortgagee shall within forty-five days deliver the note and
the mortgage and where a title is registered under article
twelve of the real property law, the registration copy of
the mortgage and any registration certificates in the
mortgagee's possession to the mortgagor or the mortgagor's
designee making such payment and request if required as
aforesaid. Delivery of a satisfaction of mortgage in
accordance with the terms of section two hundred seventy-
five of the real property law shall be deemed to satisfy the
requirements of this section regarding the satisfaction of
mortgage.
2. Upon the failure or refusal of any such mortgagee to comply
with the foregoing provisions of this section any person
having an interest in the mortgage or the debt or obligation
secured thereby or in the mortgaged premises may apply to
the supreme court or a justice thereof, or to the county
court or a judge thereof, in or of any county in which the
mortgaged premises or any part thereof are situated in whole
or in part, upon a petition, for an order to show cause why
an order should not be made by such court canceling and
discharging the mortgage of record, and directing the
register or clerk of any county in whose office the same may
have been recorded to mark the same upon his records as
canceled and discharged, and further ordering and directing
that the debt or other obligation secured by the mortgage be
canceled, upon condition that in the event such mortgage is
not paid, the sums tendered pursuant to the foregoing
provisions of this section be paid to the officer specified
by law to hold court funds and moneys deposited in court in
the county wherein the mortgaged premises are situated in
whole or in part. Said petition must be verified in like
manner as a verified pleading in an action in the supreme
court and it must set forth the grounds of the application.
3. In any case where an actual tender, as provided in
subdivision one of this section, cannot with due diligence
be made within this state, any person having an interest in
the mortgage or the debt or obligation secured thereby, or
in the mortgaged premises, may apply to the supreme court or
a justice thereof, or to the county court or a judge
thereof, in or of any county in which the mortgaged
premises, or any part thereof are situated in whole or in
part, upon petition setting forth the grounds of the
application and verified as aforesaid, for an order to show
cause why an order should not be made by said court
canceling and discharging the mortgage of record, and
directing the register or clerk of any county in whose
office the same may have been recorded to mark the same upon
his records as canceled and discharged and further ordering
and directing that the debt or other obligation secured by
the mortgage be canceled, upon condition that the principal
sum of the mortgage or any unpaid balance thereof, with
interest up to the date when said order shall be entered and
the aforesaid fees allowed by law, be paid to the officer
specified by law to hold court funds and moneys deposited in
court in the county wherein the mortgaged premises are
situated in whole or in part.
4. In the case of a mortgage secured by property improved by a
one-to-six family, owner occupied, residential structure or
residential condominium unit, if the mortgagee fails within
ninety days to deliver the satisfaction of mortgage and/or
fails within ninety days to deliver the note and the
mortgage and any other documents as required by subdivision
one of this section and if the mortgage is not otherwise
satisfied the mortgagee shall be liable to such person in
the amount of five hundred dollars or the economic loss to
such person, whichever is greater. If the mortgagee has
delivered such satisfaction of mortgage in a timely manner
and has certified that the note and/or mortgage are not in
its possession as of such date, the mortgagee shall not be
liable under this section if the mortgagee agrees to defend
and hold harmless the mortgagor by reason of the inability
or failure of the mortgagee to furnish the note or mortgage
within the time period prescribed in this subdivision;
provided that in connection with mortgage loans purchased
prior to July twenty-seven, nineteen hundred ninety-one by
the state of New York mortgage agency pursuant to section
two thousand four hundred five or two thousand four hundred-
five-b of the public authorities law, the state of New York
mortgage agency, its successors or assigns shall not be
liable under this section if it does not defend and hold
harmless the mortgagor by reason of the inability or failure
of the state of New York mortgage agency, its successors or
assigns to furnish the note or mortgage within the time
period prescribed in this subdivision. Damages imposed by
this subdivision shall be in addition to the other costs and
fees allowed in this section.
5. (a) In the case of a mortgage secured by property
improved by a one-to-six family, owner occupied,
residential structure or residential condominium unit,
if within ninety days of receipt of payment, and
request if required, the mortgagee fails to deliver to
the mortgagor or the mortgagor's designee the
satisfaction of mortgage, the note and the mortgage and
any other documents as required by subdivision one of
this section, any attorney-at-law may execute,
acknowledge and upon payment of an additional filing
fee of fifty dollars cause to be filed with the
recording officer of the county where the mortgage is
recorded, an affidavit which complies with this
section. Unless the mortgagee shall file a verified
objection to such affidavit within thirty-five days of
being filed, as of the date thirty-five days subsequent
to its filing, such affidavit shall be recorded and
satisfy the lien of such mortgage on the mortgaged
premises.
(b) The affidavit shall state that:
(i) The affiant is an attorney-at-law and that the
affidavit is made on behalf of and at the
request of the mortgagor or any person who has
acquired title to the mortgaged premises;
(ii) The mortgagor made a proper request of the
mortgagee for the execution of the satisfaction
of mortgage pursuant to subdivision one of this
section;
(iii) The mortgagor has received a payoff statement
for the loan secured by the mortgage, and shall
annex as evidence a copy of the payoff
statement;
(iv) The affiant has ascertained that the mortgagee
received payment of the loan in accordance with
the payoff statement, and shall annex as
evidence, copies of the check negotiated by the
mortgagee or documentary evidence of such
payment;
(v) The affiant, at least thirty days after the
mortgagee received payment, has given the
mortgagee written notice together with a copy of
the proposed affidavit, delivered by certified
or registered mail, return receipt requested, to
the attention of the person or department set
forth in the payoff statement, of the affiant's
intention to execute and record an affidavit in
accordance with this section; and
(vi) The mortgagee has not responded in writing to
such notification or all requests by the
mortgagee for payment have been complied with at
least fifteen days prior to the date of the
affidavit.
(c) Such affidavit shall identify the mortgagor and the
mortgagee, state the date of the mortgage, the liber
and page of the land records where the mortgage is
recorded and give similar information with respect to
any recorded assignment of the mortgage.
(d) The affiant shall attach to the affidavit photostatic
copies of the documentary evidence that payment has
been received by the mortgagee, including mortgagee's
endorsement of any check, and a photostatic copy of the
payoff statement and certify each to be a copy of the
original document.
(e) Within five days of the filing of such affidavit the
register or clerk of every county in whose office said
mortgage has been recorded shall give the mortgagee
written notice, delivered by certified or registered
mail, return receipt requested, to the attention of the
person or department set forth in the payoff statement,
as annexed to the affidavit filed hereunder, of the
filing of such affidavit, which notice shall include
the following notice in capital letters:
"THIS NOTICE IS MADE UNDER SECTION 1921 OF
THE REAL PROPERTY ACTIONS AND PROCEEDINGS
LAW. FAILURE TO FILE WITH THIS OFFICE WITHIN
THIRTY DAYS OF THIS NOTICE A VERIFIED
OBJECTION TO THE DISCHARGE OF THE MORTGAGE
DESCRIBED IN THIS NOTICE WILL RESULT IN SUCH
MORTGAGE BEING CANCELED AND DISCHARGED OF
RECORD."
Unless the register or clerk of such county shall
receive from the mortgagee, within thirty-five days of
the date of filing of such affidavit, a verified
objection by the mortgagee to the discharge of said
mortgage, the register or clerk shall record the
affidavit and supporting documents and mark the
mortgage described in the affidavit canceled and
discharged of record and such recorded affidavit shall
have the same force and effect as a duly executed
satisfaction of mortgage recorded in accordance with
section three hundred twenty-one of the real property
law. If the register or clerk of such county shall
receive from the mortgagee, within thirty-five days of
the date of filing of such affidavit, a verified
objection by the mortgagee to the discharge of said
mortgage, the register or clerk shall return the
original affidavit and the verified objection to the
attorney filing such affidavit without marking the
mortgage described in the affidavit canceled or
discharged of record. The clerk or register of such
county shall additionally transmit a copy of the
affidavit and the verified objection to its applicable
appellate division of the supreme court, committee on
professional standards, for such further proceedings as
determined appropriate by such committee.
(f) The county clerk or register shall index the affidavit
in the same manner as a satisfaction of mortgage and
shall record such instrument upon payment of the same
fees as for a satisfaction of mortgage.
(g) (i) Any attorney who prepares an affidavit and
negligently causes the affidavit to contain
false information shall be liable to the
mortgagee for any monetary damages and subject
to other applicable sanctions under law.
(ii) Any person who supplies false information for
the affidavit shall be liable to the mortgagee
for any monetary damages and subject to other
applicable sanctions under law.
(h) A banking or other organization having the original or
copies thereof, shall furnish, within sixty days of
receiving a written request, a copy of the front and
reverse sides of a check issued to satisfy the mortgage
obligation by such banking or other organization,
needed for completion of an affidavit in accordance
with this subdivision.
6. Eight days' notice of the application for either of the
orders provided for in subdivisions two and three of this
section shall be given to the then mortgagee of record and
also, if the petition show that there is a mortgage not of
record, to such mortgagee. Such notice shall be given in
such manner as the court or the judge or justice thereof to
whom the petition is presented may direct, and said court or
judge or justice may require such longer notice to be given
as may seem proper. If sufficient cause be shown the court
or judge or justice thereof may issue such order to show
cause returnable in less than eight days.
7. Upon the return day of such order to show cause, the court,
upon proof of due service thereof and on proof of the
identity of the mortgagee and of the person presenting the
petition, shall inquire in such manner as it may deem
advisable, into the truth of the facts set forth in the
petition, and in case it shall appear that said principal
sum or any unpaid balance thereof and interest and the said
fees allowed by law have been duly paid or tendered but not
accepted and said satisfaction of mortgage has been duly
presented for execution, or that such tender and
presentation could not have been made within this state with
due diligence, then, in the event such mortgage is not paid,
the court shall make an order directing the sums so
tendered, or in a case where such tender could not have been
made as aforesaid, directing the principal sum or any unpaid
balance thereof, with interest thereon to the date of entry
of said order together with all other amounts due thereunder
pursuant to subdivision three of this section and the
aforesaid fees allowed by law, to be paid to the officer
specified by law to hold court funds and moneys deposited in
court in the county wherein the application herein is made,
and directing and ordering that upon such payment the debt
or other obligation secured by the mortgage be canceled and
further directing the register or clerk of any and every
county in whose office said mortgage shall have been
recorded to mark said mortgage canceled and discharged of
record upon the production and delivery to such register or
clerk of a certified copy of the order and the receipt of
such officer, showing that the amount required by said order
has been deposited with him, which certified copy of said
order and which receipt shall be recorded, filed and indexed
by any such register or clerk in the same manner as a
certificate of discharge of a mortgage. Said receipt need
not be acknowledged to entitle it to be recorded. The court
in its discretion, when granting any such order after
application therefor pursuant to subdivision two of this
section, may award costs and reasonable attorney's fees to
the person making the application, in the absence of the
showing of a valid reason for the failure or refusal to
execute the satisfaction of mortgage and deliver the same,
the note and mortgage and any other documents required under
subdivision one of this section. The money deposited shall
be payable to the mortgagee, his personal representative or
assigns, upon an order of the supreme court or county court,
directing the payment thereof to him upon such evidence as
to his right to receive the same as shall be satisfactory to
the court.
8. Wherever any register or clerk shall record any order and
receipt as hereinbefore specified, he shall mark the record
of said mortgage as follows:
"Canceled and discharged by order of the ...................
Court, County of ...................... , dated ............
and filed ...................... ,"
and thereupon the lien of such mortgage shall be deemed to
be discharged and the debt secured thereby shall be deemed
to be canceled. Said register or clerk shall be permitted to
charge for recording and filing said order and receipt, the
same fees to which he is now entitled for recording and
filing a certificate of satisfaction of a mortgage.
9. When used in this section:
(a) "Mortgagee" means (i) the current holder of the
mortgage of record or the current holder of the
mortgage, or (ii) any person to whom payments are
required to be made or (iii) their personal
representatives, agents, successors, or assigns.
(b) "Attorney-at-law" means any person admitted to practice
law in this state and in good standing.
(c) "Payoff statement" means a statement setting forth the
unpaid balance of the mortgage, including principal,
interest and other charges pursuant to the loan
documents, together with a per diem rate for interest
accruing after the date to which the unpaid balance has
been calculated. The payoff statement furnished by a
banking organization or corporate mortgagee shall
include a name of an individual employed by such
banking organization or corporate mortgagee or
department of such banking organization or corporate
mortgagee to whom inquiry concerning the payoff
statements are to be addressed in addition to the
address of the banking organization or corporation for
use in connection with the affidavit under subdivision
five of this section.
(d) "Banking organization" shall have the same meaning as
provided in subdivision eleven of section two of the
banking law and shall include any institution chartered
or licensed by the United States or any state.
(e) "Note" shall include any written evidence of
indebtedness.
Sec. 1921-a. PARTIAL RELEASE FROM LIEN OF MORTGAGED PREMISES.
1. Whenever the owner of mortgaged property situate in this
state shall be entitled, pursuant to the terms of the
mortgage encumbering such property, to obtain the release of
a portion thereof from the lien of such mortgage, then, upon
(1) delivery by such owner to the mortgagee of a partial
release from lien of mortgaged premises, in a form entitled
to be recorded, describing the portion of the mortgaged
premises so entitled to be released, together with the fees
allowed by law for the taking of the acknowledgment of a
deed, (2) proof that all requirements set forth in such
mortgage as conditions precedent to the execution and
delivery by the mortgagee of such partial release have been
satisfied, and (3) payment, or tender of payment, to the
mortgagee of all sums required under the terms of the
mortgage to be paid to obtain such partial release, such
mortgagee must execute and acknowledge before a proper
officer, in like manner as to entitle a conveyance to be
recorded, the partial release theretofore delivered to such
mortgagee or such other partial release from lien of
mortgaged premises as may be required to be executed under
the terms of the mortgage, which release shall be in
recordable form.
2. Upon the failure or refusal of any such mortgagee to comply
with the foregoing provisions of this section, any owner of
the mortgaged premises may apply to the supreme court or a
justice thereof, or to the county court or a judge thereof,
in or of any county in which the mortgaged premises or any
part thereof are situated in whole or in part, upon a
petition, for an order to show cause why an order should not
be made by such court releasing of record from the lien of
said mortgage the parcel or parcels of land described in
said release, and directing the register or clerk of any
county in whose office the same may have been recorded to
mark the same upon his records as released as to the parcel
or parcels described in such order, and further ordering and
directing that the debt or other obligation secured by the
mortgage be reduced in the amount tendered or paid, upon
condition that in the event such mortgage or part thereof is
not paid, the sums tendered pursuant to the foregoing
provisions of this section be paid to the officer specified
by law to hold court funds and moneys deposited in court in
the county wherein the mortgaged premises are situated in
whole or in part for the purpose of paying said sum over to
the mortgagee. Said petition must be verified in like manner
as a verified pleading in an action in the supreme court and
it must set forth the grounds of the application.
3. In any case where an actual tender, as provided in
subdivision one of this section, cannot, with due diligence,
be made, any owner of the mortgaged premises may apply to
the supreme court or a justice thereof, or to the county
court or a judge thereof, in or of any county in which the
mortgaged premises, or any part thereof are situated in
whole or in part, upon petition setting forth the grounds of
the application and verified as aforesaid, for an order to
show cause why an order should not be made by said court
releasing of record the parcel or parcels described in said
release from the lien of the mortgage, and directing the
register or clerk of every county in which the mortgaged
premises are located to mark the same upon his records as
released as to the parcel or parcels described in such order
and further ordering and directing that the debt or other
obligation secured by the mortgage be reduced, upon
condition that the prerequisites for obtaining such release
set forth in subdivision one of this section and the sum of
the mortgage required to be paid pursuant to the terms and
conditions of said mortgage and fees allowed by law or the
mortgage, be paid to the officer specified by law to hold
court funds and moneys deposited in court in the county
wherein the mortgaged premises are situated in whole or in
part until such time as said sums may be claimed by the
mortgagee.
4. Eight days' notice of the application for either of the
orders provided for in subdivisions two and three of this
section shall be given to the mortgagee. Such notice shall
be given in such manner as the court or the judge or justice
thereof to whom the petition is presented may direct, and
said court or judge or justice may require such longer
notice to be given as may seem proper. If sufficient cause
be shown the court or judge or justice thereof may issue
such order to show cause returnable in less than eight days.
5. Upon the return day of such order to show cause, the court,
upon proof of due service thereof and on proof of the
identity of the mortgagee and of the person presenting the
petition, shall inquire, in such manner as it may deem
advisable, into the truth of the facts set forth in the
petition, and in case it shall appear that said sum or sums
required to be paid pursuant to the terms and conditions of
the mortgage and the fees allowed by law have been duly paid
or tendered but not accepted, said partial release from lien
of mortgage instrument has been duly presented for
execution, or that such tender and presentation could not
have been made with due diligence and the prerequisites for
obtaining such release as set forth in subdivision one of
this section have been met, then, in the event that portion
of the lien of such mortgage required to be released
pursuant to the terms and conditions thereof is not so
released, the court shall make an order directing the sums
so tendered, or in a case where such tender could not have
been made as aforesaid, directing the sum or sums so
required and the fees allowed by law, to be paid to the
officer specified by law to hold court funds and moneys
deposited in court in the county wherein the application
herein is made, and directing and ordering that upon such
payment the debt or other obligation secured by the mortgage
be reduced and further directing the register or clerk of
every county in which the mortgaged premises are located to
mark said mortgage reduced of record upon the production and
delivery to such register or clerk of a certified copy of
the order and the receipt of such officer showing that the
amount required by said order and which receipt shall be
recorded, filed and indexed by any such register or clerk in
the same manner as a certificate of discharge of a release
from lien of mortgaged premises. Said receipt need not be
acknowledged to entitle it to be recorded. The court in its
discretion, when granting any such order after application
therefor pursuant to subdivision two of this section, may
award costs and reasonable attorneys' fees to the person
making the application, in the absence of the showing of a
valid reason for the failure or refusal to execute the
partial release from lien of mortgaged premises and deliver
the same. The money deposited shall be payable to the
mortgagee, his representatives or assigns, less any court
costs and reasonable attorneys' fees allowed by the court as
herein provided which shall be paid to the owner of the
mortgaged premises who has made application for the order
herein referred to upon an order of the supreme court or
county court, directing the payment thereof to such owner
upon such evidence as to his right to receive the same as
shall be satisfactory to the court.
6. Wherever any register or clerk shall record any order and
receipt as hereinbefore specified, he shall mark the record
of said mortgage, if same be recorded, as follows:
"Part of the premises herein described have been released
from lien of this mortgage by order of the __________ court,
County of ___________, dated __________ and filed __________
a description of the property so released being contained in
such order"
and thereupon the lien of such mortgage shall be deemed to
be released as to the premises so described in such order
and the debt or obligation secured thereby shall be deemed
to be reduced as provided in such order. Said register or
clerk shall be permitted to charge for recording and filing
said order and receipt, the same fees to which he is
entitled for recording and filing a certificate of release
of lien of mortgaged premises.
7. The word "mortgagee" whenever used in this section shall be
construed to include the persons entitled to enforce or
satisfy the mortgage and the personal representatives,
successors and assigns, of such persons.
8. Nothing contained in this section shall limit or abridge any
rights or remedies otherwise available at law or in equity
to the owner of the mortgaged premises or any other person
having an interest in such mortgaged premises.
Sec. 1931. DISCHARGE OF RECORD OF ANCIENT MORTGAGES PRESUMED
PAID.
1. The mortgagor, his heirs or any person having any interest
in any lands described in any mortgage of real estate in
this state, which is recorded in this state, or mentioned in
a deed recorded in this state, and which, from the lapse of
time, is presumed to be paid, or in any moneys into which
said lands have been converted under a decree of a court of
competent jurisdiction, and which are held in place of such
lands to answer such mortgage, may present his petition
together with an official search of the recording officer in
whose office the mortgage is recorded, or a search prepared
by a person duly licensed and admitted to practice law in
this state or by a title company duly incorporated and
authorized to transact business in this state showing
assignments of record, if any, to the courts mentioned in
this article, asking that such mortgage may be discharged of
record.
2. Such petition shall be verified; it shall describe the
mortgage, and when and where recorded, or if such mortgage
is not recorded that the same may be adjudged to have been
paid and to be no longer a lien upon the lands therein
described, and shall allege that such mortgage is paid; that
the mortgagee has, or, if there be more than one mortgagee,
that all of them have been dead for more than five years; or
if such mortgage has been assigned by an instrument in
writing for that purpose executed and acknowledged, so as to
entitle the same to be recorded, and such instrument of
assignment has been recorded in the office of the clerk of
the county where the mortgaged premises or some portion
thereof is situated, and the assignee or assignees of said
mortgage have been dead for more than five years, such
petition shall state such facts, and no statement respecting
the mortgagee or mortgagees or the names and places of
residence of their heirs shall be required; or if such
mortgagee be a corporation or association, that such
corporation or association has ceased to exist and do
business as such for more than five years; the time and
place of his or their death, and place of residence at the
time of his or their death; whether or not letters
testamentary or of administration have been taken out, or,
if said mortgagee or mortgagees, or assignee or assignees at
the time of his or their death resided out of this state,
whether or not letters testamentary or of administration
have been taken out in the county where such mortgaged
premises are situated; or if a corporation or association,
its last place of business; the names and places of
residence, as far as the same can be ascertained, of the
heirs of such mortgagee or mortgagees, or assignee or
assignees; or, if such mortgagee be a corporation or
association, then the names of one or more of the receivers,
if any were appointed, or of the person who has the care of
the closing up of the business of such corporation or
association, and that such mortgage has not been assigned or
transferred, and if such mortgage has been assigned, state
to whom and the facts in regard to the same.
Provided, however, that if such mortgage has been duly
assigned, by indorsement thereof or otherwise, but not
acknowledged so as to entitle the same to be recorded, then
it shall be competent for the court, at any time within the
period aforesaid, upon proof that all the matters
hereinbefore required to be stated in said petition are
true, and that the assignee of such mortgage if living, or
his personal representative if dead, has been paid the
amount due thereon, to make an order that such mortgage be
discharged of record.
Provided, further, that in case of a mortgage which was
recorded or adjudged to have been paid and no longer a lien,
more than fifty years prior to the presentation of such
petition, if the petitioner is unable with reasonable
diligence to ascertain the facts herein required to be
stated in the petition, other than the fact of payment, the
petition may set forth the best knowledge and information of
the petitioner in respect thereto and what efforts have been
made to ascertain such facts, and if the court shall be
satisfied that the petitioner has made reasonable effort to
ascertain such facts, and that the same cannot be
ascertained with reasonable diligence, it may then, in its
discretion, proceed upon said petition as hereinafter
provided.
3. Such petition may be presented to the supreme court in the
county in which the mortgaged premises are situated, or to
the county court of such county.
4. The court, upon the presentation of such petition, shall
make an order requiring all persons interested to show cause
at a certain time and place, why such mortgage should not be
discharged of record. The names of the mortgagor, mortgagee
and assignee, if any, the date of the mortgage and where
recorded, and the town or city in which the mortgaged
premises are situate, shall be specified in the order. The
order shall be published in such newspaper or newspapers,
and for such time as the court shall direct. The court may
also direct the order to be personally served upon such
persons as it shall designate.
5. The court may issue commissions to take the testimony of
witnesses and may refer it to a referee to take and report
proofs of the fact stated in the petition. The certificate
of the proper surrogate or surrogates, whether or not
letters testamentary or of administration have been issued,
shall be evidence of the fact; and the certificate of the
clerk of the county or counties in which the mortgaged
premises have been situate, since the date of the said
mortgage, shall be evidence of the assignment of such
mortgage, or of a notice of the pendency of an action to
foreclose such mortgage, and of such other matters as may be
therein stated; or if a notice of the pendency of an action
to foreclose such mortgage has been filed, then his
certificate that such mortgage has never been foreclosed.
Unless the allegation of payment shall be denied, and
evidence be given tending to rebut the presumption of
payment, arising from lapse of time, such lapse of time
shall be sufficient evidence of payment. Upon being
satisfied that the matters alleged in the petition are true,
the court may make an order that the mortgage be discharged
of record.
Sec. 1932. DISCHARGE OF RECORD OF ANCIENT MORTGAGE WHERE TIME
OF MATURITY IS DEPENDENT ON CONTINGENT EVENT
RELATED TO USE OF PREMISES.
1. The lien of every mortgage or conveyance of real estate in
this state given as security for the payment of money,
recorded more than seventy-five years ago, where the time of
maturity thereof is dependent solely upon the occurrence of
a contingent event relating to use of the mortgaged premises
for religious purposes, and where the reason for such use no
longer applies to the mortgaged premises because of changes
in the type of neighborhood in which the premises are
situated, may be discharged of record by judgment of the
supreme court in the county where the mortgaged premises are
situated, or of the county court of such county, in the
manner provided in this section.
2. The court, upon presentation of a petition, together with an
official search of the recording officer in whose office the
mortgage is recorded or a search prepared by a person duly
licensed and admitted to practice law in this state or by a
title company duly incorporated and authorized to transact
business in this state showing such recordation and
assignments of record, if any, the petition showing such
contingent event relating to the use of the mortgaged
premises for religious purposes and that the reason for such
use no longer applies to the mortgaged premises because of
changes in the type of neighborhood in which the mortgaged
premises are situated, and showing that the petitioner has
made reasonable effort to locate the mortgagee or other
person or persons authorized to execute and deliver a
satisfaction of such mortgage or conveyance but has been
unable to do so after the exercise of reasonable diligence,
shall make an order requiring all persons interested to show
cause at a certain time and place, why such mortgage should
not be discharged of record. Such order to show cause and
the publication and service thereof shall comply with the
requirements of section 1931 of this chapter, and the
proceedings on the return of such order to show cause shall
comply with the requirements of section 1931 of this chapter
except as to the allegation of payment and evidence to rebut
the presumption thereof.
3. Any judgment of the court thereon discharging the mortgage
of record shall be made only upon proof of such contingent
event relating to use of the mortgaged premises for
religious purposes, and of the changes in the type of
neighborhood in which the mortgaged premises are situated,
showing that the reason for such use no longer applies to
the mortgaged premises, and upon proof of the other matters
alleged in the petition; and any such judgment shall be made
without prejudice to the right, if any, of the mortgagee,
his representatives or assigns or other person or persons to
receive or collect the mortgage debt in any action or
proceeding not affecting such mortgaged premises.
Sec. 1933. WHEN COUNTY CLERK OR REGISTER TO DISCHARGE
MORTGAGE OF RECORD.
The county clerk, upon being furnished with an order discharging
a mortgage of record, as provided in section 1931 or section
1932, and, in the city of New York, the register, upon being
furnished with a certified copy of such order, and upon payment
of the fees allowed by law for discharging mortgages, shall
record the order and discharge the mortgage of record.
Sec. 1941. WHEN SPECIAL PROCEEDING TO QUIET TITLE MAY BE
MAINTAINED.
Whenever real property shall have been conveyed by a sheriff or
referee, pursuant to a judicial decree, which decree has been
lost or destroyed, and the defendants (other than lienors or
incumbrancers) named in the notice of pendency of the action in
which such decree was made, or those who might claim under them,
or either of them, are dead, unknown or their whereabouts can not
after diligent inquiry be ascertained, the person who has been,
or he and those having his estate who have been, for ten years in
actual possession of such property claiming it in fee under said
sheriff's or referee's deed, which deed shall have been recorded
at least ten years, may maintain a special proceeding for the
purpose of establishing judicially his or their title to such
real property.
Sec. 1942. PETITION IN SPECIAL PROCEEDING TO QUIET TITLE.
1. A person or persons, desiring to institute a proceeding
under section nineteen hundred forty-one, must present a
petition to the supreme court at a special term to be held
in the judicial district in which the real property is
situated, setting forth the facts proving to the
satisfaction of the court, that the case is one of those
specified in that section, and must describe the property
with common certainty, and state what, if any, liens or
incumbrances exist thereon, and the names of the persons, if
any, besides the petitioners, who have been in the actual
possession of the property during the past ten years
claiming title as owners thereof in fee, and how such title
was derived, and shall also annex to said petition a duly
certified copy of the sheriff's or referee's deed recorded
ten years since under which petitioners claim title.
2. In case the property described in said sheriff's or
referee's deed shall have been subdivided, the owner or
owners of the several parcels thereof may unite in the same
petition and proceeding.
Sec. 1943. ORDER FOR PUBLICATION OF NOTICE TO PERSONS
INTERESTED.
Upon the presentation of such petition, duly verified, the said
court shall make an order for the publication of a notice
requiring all persons claiming any interest in the real property
described in such petition to appear before the court at a
special term thereof, to be held at a time and place to be
therein specified, not less than three months nor more than six
months thereafter, and show cause, if any they have, why they
should not be forever barred from maintaining any action or
proceeding for the recovery of the real property, which shall be
substantially described as set forth in said petition, and which
notice shall also contain a reference to the time and place of
record of the sheriff's or referee's deed referred to in the
petition. Said publication shall be made once a week for three
months successively prior to the return day named in said notice
in two newspapers designated in the order as most likely to give
notice to any claimant of the property.
Sec. 1944. HEARING AND FINAL ORDER UPON NON-APPEARANCE OF
ADVERSE CLAIMANTS.
Upon the return day named in said notice the court shall proceed
summarily to inquire into the truth of the matters set forth in
the petition, and may appoint a referee for that purpose, and if
there shall be no appearance by any person claiming any adverse
interest to the petitioners in the real property described in the
petition, the court may make a final order declaring that the
title of the petitioner to such real property has been judicially
established, which final order, together with the petition and
order for and proof of publication of the notice, and the proofs
taken before the court or referee shall be filed in the office of
the clerk of the county in which the real property is situated,
and such final order shall be evidence of the facts so declared
to be established thereby in all courts and places, and
thereafter no action or proceeding for the recovery of the real
property described in said final order or any part thereof, or of
any interest therein, shall be maintained by any person named as
a defendant in the notice of pendency of action referred to in
section 1941, or by any person or persons claiming under such
defendant or either of them.
Sec. 1945. HEARING AND FINAL ORDER UPON APPEARANCE OF ADVERSE
CLAIMANTS.
If any person shall appear on the return day of said notice and
claim in writing an interest in the real property adverse to that
of the petitioners, stating the nature of his claim and his place
of residence, the court may proceed in like manner to inquire
into the truth of the facts stated in the petition and may make a
final order in like manner and with like effect as above
provided, except that such final order shall not affect in any
way any person who shall have appeared on the return day and
asserted a claim adverse to the petitioners, as herein provided
for.
Sec. 1946. NOTICE OF PENDENCY TO BE FILED AND RECORDED.
No final order pursuant to section 1944 or section 1945 shall be
made until the petitioners named in said proceedings, or their
attorney, shall file in the clerk's office of the county in which
such real property is situated a notice of the pendency of the
said special proceeding, containing the names of all the persons
claiming to be then owners of the property in fee, pursuant to
said sheriff's or referee's deed, the object of the proceeding,
together with a brief description of said property. Each county
clerk with whom such notice is filed must immediately record it
in the book kept in his office for recording of notices of
pendency of an action, and index it to the name of each person
claiming to be owner as aforesaid, and said clerk shall be
entitled to receive for his services the same fees therefor as
are now allowed by law for filing, recording and indexing a
notice of pendency of action.
Sec. 1951. EXTINGUISHMENT OF NON-SUBSTANTIAL RESTRICTIONS ON
THE USE OF LAND.
1. No restriction on the use of land created at any time by
covenant, promise or negative easement, or created on or
after September 1, 1958, by a special limitation or
condition subsequent governed by section 1953, shall be
enforced by injunction or judgment compelling a conveyance
of the land burdened by the restriction or an interest
therein, nor shall such restriction be declared or
determined to be enforceable, if, at the time the
enforceability of the restriction is brought in question, it
appears that the restriction is of no actual and substantial
benefit to the persons seeking its enforcement or seeking a
declaration or determination of its enforceability, either
because the purpose of the restriction has already been
accomplished or, by reason of changed conditions or other
cause, its purpose is not capable of accomplishment, or for
any other reason.
2. When relief against such a restriction is sought in an
action to quiet title or to obtain a declaration with
respect to enforceability of the restriction or to determine
an adverse claim arising from the restriction, or is sought
by way of defense or counterclaim in an action to enforce
the restriction or to obtain a declaration with respect to
its enforceability, if the court shall find that the
restriction is of no actual and substantial benefit to the
persons seeking its enforcement or seeking a declaration or
determination of its enforceability, either because the
purpose of the restriction has already been accomplished or,
by reason of changed conditions or other cause, its purpose
is not capable of accomplishment, or for any other reason,
it may adjudge that the restriction is not enforceable by
injunction or as provided in subdivision 2 of section 1953
and that it shall be completely extinguished upon payment,
to the person or persons who would otherwise be entitled to
enforce it in the event of a breach at the time of the
action, of such damages, if any, as such person or persons
will sustain from the extinguishment of the restriction.
Sec. 1953. EFFECT OF CERTAIN SPECIAL LIMITATIONS AND
CONDITIONS SUBSEQUENT.
1. Except as provided in subdivision 4, a special limitation or
condition subsequent created on or after September 1, 1958
shall be governed by this section in any case where it
expressly or by necessary result restricts the use of land,
but if such special limitation or condition subsequent also
creates a possibility of reverter or right of entry
conditioned upon an event other than breach of such a
restriction, it shall be governed by this section to the
extent only that the right of entry or possibility of
reverter is conditioned upon breach of such express or
implied restriction on the use of land.
2. No reverter shall occur and no possessory estate shall
result by reason of such special limitation, and no right of
entry shall accrue by reason of breach of such condition
subsequent, but upon the happening of such a breach the
person or persons who would have such possessory estate or
right of entry except for this section, may maintain an
action in the supreme court to compel a conveyance to him or
them of the land, or the interest therein, which is subject
to the special limitation or condition subsequent.
3. The relief provided in subdivision 2 shall be granted only
to protect a substantial interest in enforcement of the
restriction, established by the person or persons in whose
favor the relief is granted. The action provided for in this
section shall be subject to any defense that might be
interposed in an action to enjoin a violation of the
restriction if it were created by covenant of the person or
persons against whom the relief is sought, and the court may
deny such relief, or impose conditions upon the granting
thereof, or grant alternative relief, upon like cause and in
like manner as in an action for such injunction. If it
appears that the relief provided in subdivision 2 would be
inequitable, the court may, in lieu thereof, restrain the
repetition or continuation of a breach of the restriction,
or it may grant the relief provided in subdivision 2 upon
such terms as justice may require to avoid a forfeiture of
the value of improvements or other unjust enrichment.
4. This section shall not apply where the special limitation or
condition subsequent was created in a conveyance or devise,
whether or not in trust, for benevolent, charitable,
educational, public or religious purposes and restricts the
use of land to such a purpose or to a particular application
or means of carrying out such purpose, or was created by a
lease for a term of less than one hundred years and
restricts use of the leased premises.
Sec. 1954. ACTION TO LIMIT EXISTING POSSIBILITIES OF REVERTER
AND RIGHTS OF ENTRY RESTRICTING THE USE OF LAND.
1. This section shall apply to a special limitation or
condition subsequent created prior to September 1, 1958
which would be subject to section 1953 if it had been
created on or after September 1, 1958.
2. The owners of the estate subject to the special limitation
or condition subsequent, or one or more of such owners, may
maintain an action to obtain a judgment that the special
limitation or condition subsequent be governed by section
1951 and section 1953, or that it be so governed to the
extent of particular terms of the special limitation or
condition subsequent, or to the extent of a particular part
of the land burdened by the restriction. Such action may be
maintained against one or more of the persons who would have
a possessory estate resulting from the occurrence of the
reverter or a right of entry for breach of the condition if
a breach of the restriction had occurred at the time the
action is commenced, to obtain such a judgment with respect
to the interests of the parties to the action.
3. Except as provided in subdivision 4, the court may grant the
relief described in subdivision 2 if it finds that the
primary purpose of the special limitation or condition
subsequent was to restrict the use of land and that the
tenor of the restriction, the circumstances in which it was
imposed, and the conditions in which it operates at the time
of the action are such that the special limitation or
condition subsequent unreasonably limits the use and
development of the land or unreasonably impairs the
certainty of titles.
4. The relief provided in this section shall not be granted if
the court finds that a breach of the restriction has already
occurred.
5. If the complaint in any such action is dismissed on the
ground that a breach of the restriction has already occurred
at the time the action is brought or relief is denied on
such ground, the right of entry for breach of the condition
or any cause of action to recover possession of the land,
owned by a person who was a party to the action, or a person
claiming through or under him, must be asserted in the same
action or by action commenced within six months from the
entry of the judgment therein, and if such action is not
commenced within that time the right of entry, or the
possessory estate resulting from the occurrence of the
reverter, shall be extinguished to the extent that it is
vested at the time of the entry of the judgment in persons
who are parties to the action, or thereafter vests in
persons claiming through or under them by title accruing
after the filing of a notice of pendency of the action.
6. The action provided in this section may be commenced at any
time.
Sec. 1955. MODIFICATION OR EXTINGUISHMENT OF CERTAIN
RESTRICTIONS ON THE USE OF LAND HELD FOR
CHARITABLE PURPOSES.
1. Where land is held, whether or not in trust, for benevolent,
charitable, educational, public or religious purposes and
the use of such land is restricted to such purpose or to a
particular application of or means of carrying out such
purpose by a special limitation or condition subsequent
created in the conveyance or devise under which the land is
so held, or by an agreement to convey, reconvey or surrender
the land or the estate so held upon a contingency relating
to its use, an action may be brought in the supreme court to
obtain relief from such restriction as provided in this
section.
2. No action for the relief provided in this section shall be
commenced until the expiration of two years from the
creation of the special limitation or condition subsequent,
or the making of the agreement. The attorney-general shall
be a party to such action.
3. In determining whether relief shall be granted, and the
nature of such relief, the court shall consider and shall
make findings with respect to the following:
(a) whether the primary purpose of the special limitation,
condition subsequent or agreement to convey, reconvey
or surrender was to restrict the use of the land;
(b) whether the purpose of the restriction was to ensure
that the substantial value of the land or of the estate
subject to the special limitation, condition subsequent
or agreement, rather than the land itself, or such
estate itself, be devoted to and employed for a
benevolent, charitable, educational, public or
religious purpose.
If the findings with respect to (a) and (b) are such as
to make the following matters relevant or appropriate
for consideration, the court shall also consider and
make findings with respect to the following:
(c) whether the existence of the restriction is
substantially impeding the owner of the land, or of the
estate subject to the special limitation, condition
subsequent or agreement, in the furtherance of the
benevolent, charitable, educational, public or
religious purposes for which the land is held;
(d) whether the person or persons who would have a right of
entry, possessory estate resulting from the occurrence
of a reverter, or right to conveyance, reconveyance or
surrender of the land or estate in the event of breach
of the restriction at the time of the action will
suffer substantial damage by reason of extinguishment
or modification of the restriction, and, in such event,
whether damages or restitution of the land, or its
value, in whole or in part, should be awarded to such
person or persons.
4. The judgment of the court may include, in the discretion of
the court, an adjudication (a) that the restriction is
discharged in whole or in part, or that its tenor is
modified as provided in the judgment; (b) that the holder of
the land or estate therein subject to the restriction be
authorized or directed to convey, lease, mortgage or
otherwise dispose of the land or estate therein free of the
restriction and that the purchaser under such disposition
shall take free of the restriction; (c) directing the use to
which the avails of any such disposition shall be put; (d)
declaring the interests that the owners of the possibility
of reverter or right of entry, or persons having an interest
pursuant to the agreement, shall have in any property paid
for in whole or in part with the proceeds of the
disposition; (e) awarding damages for such injury as a party
to the action may sustain by reason of extinguishment or
modification of the restriction. The judgment may include
such other provisions as will in the opinion of the court
further the benevolent, charitable, educational, public or
religious purposes for which the land is held and such other
provisions as equity may require.
5. This section shall apply to a special limitation or
condition subsequent created or agreement made either before
or after September 1, 1958, except that it shall not apply
(a) where a right of entry or right to a conveyance,
reconveyance or surrender of the property has accrued or a
reverter has occurred prior to that date, or (b) where the
conveyance creating the restriction was made by or the
agreement creating the restriction was made with the United
States, the state of New York or any governmental unit,
subdivision or agency of the United States or the state of
New York.
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ARTICLE 19-A
SPECIAL PROCEEDING TO CONVEY TITLE TO
ABANDONED DWELLING TO CITY, TOWN OR VILLAGE
Section 1970. Applicability.
1971. Certification of abandonment.
1971-a. Destruction of abandoned dwellings.
1972. Notice.
1973. Commencement of proceeding.
1974. Decision and judgment of court.
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Sec. 1970. APPLICABILITY.
The department or agency of a city, town or village, responsible
for the enforcement of the multiple dwelling law, the multiple
residence law, or any other law, code or ordinance governing the
occupancy and maintenance of residential property (hereinafter in
this article referred to as "the department") may institute a
proceeding in accordance with the provisions of this article for
a judgment vesting in the city, town or village title to a
dwelling which has been abandoned by the owner. This article
shall not apply to a one-family or two-family dwelling occupied
by the owner thereof.
Sec. 1971. CERTIFICATION OF ABANDONMENT.
1. The department may make a finding that a dwelling is
abandoned if:
(a) In the case of an occupied dwelling, the owner has
failed for a period of at least three consecutive
months either to collect rent or to institute summary
proceedings for nonpayment of rent, and the department
finds that the dwelling has become a danger to life,
health or safety as a result of the owner's failure to
assume his responsibility for its condition. Such
failure may be shown by such facts as an owner's
failure to provide services including, but not limited
to, the failure to make repairs, supply janitorial
service, purchase fuel or other needed supplies, or pay
utility bills. The appointment of an administrator
pursuant to article seven-A of this chapter shall not
prevent the department from making a finding that a
dwelling is abandoned.
(b) In the case of a vacant dwelling, it is not sealed or
continuously guarded as required by law or it was
sealed or is continuously guarded by a person other
than the owner, a mortgagee, lienor or agent thereof,
and either of the following facts exists:
(i) A vacate order of the department or other
governmental agency currently prohibits occupancy
of the dwelling; or
(ii) The tax on such premises has been due and unpaid
for a period of at least one year.
2. When the department finds that a dwelling is abandoned
within the meaning of this article, it shall make and file
among its records a certification containing such finding
and the facts on which it is based. Further, it shall
immediately affix to the dwelling in a prominent and
conspicuous location, a notice that the building has been
found to be an abandoned building and that it is a crime to
take, remove or otherwise damage any fixture or part of the
building structure.
Sec. 1971-a. DESTRUCTION OF ABANDONED DWELLINGS.
"Destruction of an abandoned dwelling" occurs when a person,
having no right to do so or permission of the department or the
owner to take, remove or otherwise damage the fixtures or the
structure of the building, nor any reasonable ground to believe
that he has such right or permission, intentionally removes or
damages any fixture or part of the structure of a building which
has been certified as abandoned in accordance with the provisions
of section nineteen hundred seventy-one of this chapter.
Sec. 1972. NOTICE.
1. If the department proposes to institute proceedings pursuant
to this article, it may file a copy of the certification and
a notice of intention to commence such proceedings in the
office of the clerk of the county in which the dwelling is
located. Such notice shall contain the names of all persons
required to be served pursuant to this section and shall
otherwise meet the requirements of subdivision (b) of
section six thousand five hundred eleven of the civil
practice law and rules. The notice shall be indexed by the
clerk in the manner prescribed by subdivision (c) of section
sixty-five hundred eleven of the civil practice law and
rules for a notice of pendency of action and shall have the
same effect as such notice. It shall expire one year after
filing, if no proceeding pursuant to this article has been
commenced. Except as otherwise provided herein, all of the
provisions of article sixty-five of the civil practice law
and rules shall be applicable to the notice filed pursuant
to this article.
2. The department shall serve upon the owner of the dwelling, a
copy of the certification. Service shall be made personally
or by posting in a conspicuous place upon the dwelling and
mailing a copy by registered or certified mail to the last
known owner at such owner's last known address. In the case
of a dwelling subject to the provisions of section three
hundred twenty-five of the multiple dwelling law, such
mailing may be made to the last registered owner at his last
registered address. The copy of the certification shall be
accompanied by a notice stating that proceedings pursuant to
this title may be instituted unless the owner notifies the
department that the property has not been abandoned. Such
notification shall be made by a showing that the conditions
upon which the findings in such certification are based do
not exist or have been corrected.
Such showing shall be made not later than thirty days after
the date of such notice.
3. Within five days of the service of notice on the owner, a
copy of the certification shall be served on each mortgagee,
lienor and lessee of record, personally or by registered
mail to the address set forth in the recorded instrument or,
if no address appears therein, to the person at whose
request the instrument was recorded. Such copy shall, in the
case of a mortgagee or lienor, be accompanied by a notice
that proceedings pursuant to this article may be instituted
unless the mortgagee or lienor, within fifteen days of such
mailing, either commences proceedings to foreclose the
mortgage or lien or enters into an agreement with the
department to bring the building into compliance with the
applicable provisions of law.
4. If the name or address of (a) the last owner of record; or
(b) any owner, mortgagee, lienor, or claimant as shown on
records maintained by any city official required by any
local law to maintain records of persons entitled to notice
or process in connection with the maintenance of in rem
foreclosure actions; (c) the person listed as the owner of
the property on the latest completed assessment roll, is
different from that referred to in subdivisions two and
three of this section, a copy of the notice to the owner, or
to a mortgagee or lienor, whichever is applicable, shall
also be sent to such person at such address by registered
mail.
Sec. 1973. COMMENCEMENT OF PROCEEDING.
1. After all provisions of section nineteen hundred seventy-two
of this article have been complied with, the department may
commence a proceeding in a court of competent jurisdiction
in the county in which the dwelling is located, to vest
title to the property in the city, town or village.
2. The petition in such proceeding shall be accompanied by a
copy of the certification and proof by affidavit that the
provisions of section nineteen hundred seventy-two have been
complied with and that no party served with the notice
pursuant to such section has taken the appropriate action
prescribed therein in response thereto.
3. A copy of the petition shall be served on all persons to
whom notice was given pursuant to section nineteen hundred
seventy-two of this title by personal service pursuant to
article three of the civil practice law and rules. A notice
of pendency shall be filed in accordance with the provisions
of section sixty-five hundred one of the civil practice law
and rules. A copy of the petition shall also be posted in a
conspicuous place on the premises in question, accompanied
by a notice that any person having or claiming an interest
in the property may appear at the hearing thereon to protect
his interest.
4. The petition shall be noticed to be heard not less than
fifteen days after service is completed on all parties to
the proceeding.
5. A special proceeding pursuant to this article may also be
commenced by order to show cause, in which case the manner
of service and the time at which the order is returnable
shall be as prescribed therein by the court.
Sec. 1974. DECISION AND JUDGMENT OF COURT.
1. If any party to the proceeding contests the issue of
abandonment, the burden of proving that the dwelling is
abandoned shall be upon the department, and the court shall
make a finding based on the facts before it.
2. Upon application by any party to the proceeding, the court
may order a stay of the proceeding for such time as the
court deems proper to permit the mortgagee or lienor to
foreclose his mortgage or lien and to permit the owner,
mortgager or lienor to enter the property to make repairs or
if the property be vacant to seal or continuously guard the
building as required by law. The court may impose such terms
upon the owner, mortgagee or lienor as it deems proper for
the issuance of said order, including the posting of such
security, if any, as it may require. At the expiration of
the period prescribed by the court, the court may extend the
time of the owner, mortgagee or lienor to comply with the
order, dismiss the proceeding if the owner, mortgagee or
lienor has substantially complied with the order, or issue a
judgment as provided in subdivision three of this section,
if the court finds that the owner, mortgagee or lienor has
failed to comply with the order.
3. Upon a finding by the court that the dwelling is abandoned,
the court shall enter a final judgment in favor of the
petitioner. The fact that an administrator has been
appointed pursuant to article seven-A of this chapter shall
not prevent the court from entering a final judgment in
favor of the petitioner upon a finding by the court that the
dwelling is abandoned. The final judgment shall direct such
officer of the city, town or village in which the dwelling
is located as may be designated in the judgment to execute
and record a deed conveying title of the premises to the
city, town or village thirty days after entry of judgment.
Upon the entry of such judgment the city, town or village
shall be seized of an estate in fee simple absolute in such
land and all persons, including the state of New York,
infants, incompetents, absentees and non- residents who may
have had any right, title, interest, claim, lien or equity
of redemption in or upon such lands shall be barred and
forever foreclosed of all such right, title, interest,
claim, lien or equity of redemption.
4. The provisions of section three hundred seventeen of the
civil practice law and rules shall not apply to a proceeding
instituted pursuant to this article. A motion or action to
set aside a judgment in a proceeding instituted pursuant to
this article on the grounds either that there was a failure
to comply with the provisions of this article as to notice
or that a defect in the proceeding prejudiced a substantial
right of a party may be instituted within ninety days after
the deed vesting title in a city has been recorded, but not
thereafter.
5. The right, title and interest of a purchaser or incumbrancer
of a property as to which a deed vesting title in a city,
town or village has been recorded pursuant to a judgment
obtained through this article shall not be affected or
impaired by a motion or action instituted more than ninety
days after such deed vesting title in a city, town or
village has been recorded.
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ARTICLE 20
ENFORCEMENT OF COVENANTS AND EASEMENTS; RECOVERY OF
DAMAGES FOR BREACH OF COVENANT OR INJURY TO EASEMENT
Section 2001. Action to enforce certain covenants
restricting use of land or for damages for
breach to be brought within two years.
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Sec. 2001. ACTION TO ENFORCE CERTAIN COVENANTS RESTRICTING
USE OF LAND OR FOR DAMAGES FOR BREACH TO BE
BROUGHT WITHIN TWO YEARS.
1. This section applies to actions to enforce a covenant or
agreement restricting the use of land or to recover damages
for breach thereof, including an action predicated on
infringement of an easement or other interest created by the
covenant or agreement, to the extent that the restriction
relates to structures that may be erected on the premises
and limits such structures with respect to set-back or side-
lines, the area that may be built upon, the location,
independent character or number of structures, height, or
general purpose for which they shall be designed or
typically suited.
2. An action to enforce the covenant or agreement by compelling
the removal or alteration of a structure, or to recover
damages for breach of the covenant or agreement, or to
recover damages for infringement of an easement or other
interest in the premises so restricted, cannot be maintained
unless it is commenced (a) before the expiration of two
years from the completion of the structure concerned, or (b)
before September one, nineteen hundred sixty-five, whichever
shall be later.
3. a. For the purposes of this section, where the breach
of the restriction upon which the action is predicated
consists of a replacement, enlargement or alteration of
a previously existing structure which did not
constitute or involve a violation of the restriction,
or where a previously existing structure constituted a
violation for which action is barred as provided in
this section and a replacement, enlargement or
alteration is made constituting or creating a different
or more extensive violation, the completion of the
replacement, enlargement or alteration shall be deemed
the completion of the structure.
b. The date of issuance of a certificate of occupancy or,
if no such certificate shall have been issued, the date
of actual occupancy of the structure or of the
structure as replaced, enlarged or altered, shall be
deemed the date of completion of the structure.
4. The application of this section is not affected by any
disability or lack of knowledge on the part of any person,
and is not affected by the fact that the person against whom
the action might have been brought within the period herein
provided was during that time a non-resident or absent from
the state.
5. If an action governed by this section is not commenced
within the time herein provided it shall be conclusively
presumed that the right of action for the relief for which
that action might have been brought has been released.
6. Nothing in this section shall be construed in any manner to
limit any other statute or rule of law or equity by reason
of which, at a date previous to the expiration of the period
provided in this section, the restriction is or may be
deemed extinguished or held unenforceable, or unenforceable
by judgment compelling the removal or alteration of a
structure.
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ARTICLE 21
EFFECTIVE DATE; LAWS REPEALED
Section 2101. Effective date.
2111. Laws repealed.
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Sec. 2101. EFFECTIVE DATE.
This act shall take effect September 1, 1963.
Sec. 2111. LAWS REPEALED.
The following sections of the real property law are hereby
repealed:
Section three, as added by chapter three hundred seventy-
four of the laws of nineteen hundred twenty-two;
Section seventy-two;
Section one hundred ninety-a, as added by chapter sixteen of
the laws of nineteen hundred thirty-eight;
Sections one hundred seven, one hundred seven-a, one hundred
seven-b, one hundred seven-c, one hundred seven-d, one
hundred seven-e, one hundred seven-f, one hundred seven-g,
one hundred seven-h, one hundred seven-i, one hundred seven-
j, one hundred seven-k, one hundred seven-l, one hundred
seven-m, and one hundred seven-n, as added by chapter one
hundred forty-one of the laws of nineteen hundred thirty-
seven;
Section one hundred seven-o, as added by chapter six hundred
fifty of the laws of nineteen hundred fifty-six;
Section one hundred sixteen, as last amended by chapter
three hundred seventy-eight of the laws of nineteen hundred
thirty-five;
Section three hundred thirty-three-b, as amended by chapter
three hundred thirty-one of the laws of nineteen hundred
forty-five and subdivision five having been amended by
chapter one hundred forty-eight of the laws of nineteen
hundred fifty-eight;
Section three hundred forty, as amended by chapter three
hundred thirty-four of the laws of nineteen hundred forty-
three;
Sections three hundred forty-one, three hundred forty-two,
and three hundred forty-three;
Section three hundred forty-three-a, as added by chapter
three hundred nine of the laws of nineteen hundred sixty;
Section three hundred forty-four, as amended by chapter
eighty-five of the laws of nineteen hundred forty-eight;
Section three hundred forty-six and section three hundred
forty-seven, as added by chapter eight hundred sixty-four of
the laws of nineteen hundred fifty-eight;
Section three hundred forty-eight, as added by chapter eight
hundred sixty-six of the laws of nineteen hundred fifty-
eight;
Section three hundred forty-nine, as added by chapter eight
hundred sixty-three of the laws of nineteen hundred fifty-
eight;
Section three hundred sixty and section three hundred sixty-
one, as amended by chapter nine hundred sixty-one of the
laws of nineteen hundred forty-six;
Section three hundred sixty-two, as amended by chapter two
hundred forty of the laws of nineteen hundred nine;
Sections three hundred sixty-three, three hundred sixty-
four, three hundred sixty-five and three hundred sixty-six;
Section four hundred sixty, as added by chapter four hundred
eighty-six of the laws of nineteen hundred fifty-four;
Sections four hundred sixty-one, four hundred sixty-two,
four hundred sixty-three, four hundred sixty-four, four
hundred sixty-five, four hundred sixty-six, four hundred
sixty-seven, four hundred sixty-eight, four hundred sixty-
nine, four hundred seventy, four hundred seventy-one, four
hundred seventy-two, four hundred seventy-three, four
hundred seventy-four, four hundred seventy-five, four
hundred seventy-six, four hundred seventy-seven, four
hundred seventy-eight, four hundred seventy-nine, four
hundred eighty, four hundred eighty-one, four hundred eighty-
two, four hundred eighty-three, four hundred eighty-four,
four hundred eighty-five, four hundred eighty-six, four
hundred eighty-seven, four hundred eighty-eight, four
hundred eighty-nine, four hundred ninety and four hundred
ninety-one, as added by chapter nine hundred thirty of the
laws of nineteen hundred twenty;
Section five hundred, as added by chapter five hundred sixty-
one of the laws of nineteen hundred forty-three subdivision
four having been added by chapter one hundred five of the
laws of nineteen hundred forty-eight;
Section five hundred-a, as added by chapter six hundred ten
of the laws of nineteen hundred fifty-one;
Section five hundred-b, as added by chapter eight hundred
ninety-four of the laws of nineteen hundred fifty-six;
Section five hundred one, as added by chapter five hundred
sixty-one of the laws of nineteen hundred forty-three;
Sections five hundred two, five hundred three, and five
hundred four, as so renumbered and last amended by chapter
five hundred sixty-one of the laws of nineteen hundred forty-
three;
Section five hundred five, as added by chapter five hundred
sixty-one of the laws of nineteen hundred forty-three;
Section five hundred six, such section having been added by
chapter five hundred sixty-one of the laws of nineteen
hundred forty-three, subdivision three having been amended
by chapter six hundred eighty of the laws of nineteen
hundred forty-four and subdivision one having been amended
by chapter five hundred fifty-six of the laws of nineteen
hundred fifty-four;
Sections five hundred six-a and five hundred six-b, as added
by chapter six hundred ten of the laws of nineteen hundred
fifty-one;
Section five hundred seven, as so renumbered and last
amended by chapter five hundred sixty-one of the laws of
nineteen hundred forty-three and section five hundred eight
as amended by chapter five hundred sixty-five of the laws of
nineteen hundred twenty-five and so renumbered by chapter
five hundred sixty-one of the laws of nineteen hundred forty-
three;
Section five hundred nine, as added by chapter five hundred
sixty-one of the laws of nineteen hundred forty-three;
Sections five hundred twenty, five hundred twenty-one, five
hundred twenty-two, and five hundred twenty-three, as added
by chapter nine hundred thirty of the laws of nineteen
hundred twenty;
Sections five hundred twenty-four and five hundred twenty-
five, as amended by chapter seven hundred ninety-seven of
the laws of nineteen hundred thirty-five;
Section five hundred twenty-six, as added by chapter nine
hundred thirty of the laws of nineteen hundred twenty;
Section five hundred twenty-seven, as amended by chapter
three hundred four of the laws of nineteen hundred forty-
four;
Sections five hundred twenty-eight, five hundred twenty-
nine, five hundred thirty, five hundred thirty-one and five
hundred thirty-two, as added by chapter nine hundred thirty
of the laws of nineteen hundred twenty;
Section five hundred thirty-two-a, as added by chapter eight
hundred sixty-nine of the laws of nineteen hundred sixty-
one;
Sections five hundred thirty-three, five hundred thirty-
four, five hundred thirty-five, and five hundred thirty-six,
as added by chapter nine hundred thirty of the laws of
nineteen hundred twenty;
Section five hundred thirty-seven, as added by chapter one
hundred sixty-five of the laws of nineteen hundred thirty-
seven;
Section five hundred thirty-eight, as amended by chapter
eight hundred forty-nine of the laws of nineteen hundred
forty-seven;
Section five hundred thirty-nine, as added by chapter three
hundred twenty-one of the laws of nineteen hundred forty-
two;
Sections five hundred forty, five hundred forty-one, five
hundred forty-two, five hundred forty-three, five hundred
forty-four, five hundred forty-five, five hundred forty-six,
five hundred forty-seven, five hundred forty-eight, five
hundred forty-nine, five hundred fifty, five hundred fifty-
one, five hundred fifty-two, and five hundred fifty-three,
as added by chapter nine hundred thirty of the laws of
nineteen hundred twenty;
Section five hundred fifty-four, subdivision three having
been amended by chapter five hundred twelve of the laws of
nineteen hundred twenty-three;
Sections five hundred fifty-five, five hundred fifty-six,
five hundred fifty-seven, five hundred fifty-eight and five
hundred fifty-nine, as added by chapter nine hundred thirty
of the laws of nineteen hundred twenty;
Section five hundred sixty, as amended by chapter eight
hundred forty-nine of the laws of nineteen hundred forty-
seven;
Sections five hundred sixty-one, five hundred sixty-two and
five hundred sixty-three, as added by chapter nine hundred
thirty of the laws of nineteen hundred twenty;
Sections five hundred seventy, five hundred seventy-one,
five hundred seventy-two, five hundred seventy-three, five
hundred seventy-four, five hundred seventy-five, five
hundred seventy-six, five hundred seventy-seven, five
hundred seventy-eight, five hundred seventy-nine, five
hundred eighty, five hundred eighty-one, five hundred eighty-
two, five hundred eighty-three, five hundred eighty-four,
five hundred eighty-five, five hundred eighty-six, and five
hundred eighty-seven, as added by chapter nine hundred
thirty of the laws of nineteen hundred twenty;
Section five hundred ninety, as amended by chapter five
hundred ninety-seven of the laws of nineteen hundred thirty-
five;
Sections five hundred ninety-one, five hundred ninety-two
and five hundred ninety-three, as added by chapter nine
hundred thirty of the laws of nineteen hundred twenty.
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