In re the Distribution of the Proceeds of Sale of Real Estate of Gedney
New York Surrogate's Court
Application for distribution of surplus funds in partition under section 1538 of the Code of Civil Procedure. Tbe executor claims that the fund should be paid over to him to be distributed. That the W. H. Gedney claim was outlawed for the reason that seven and one-half years had elapsed before the commencement of the partition suit, and that the Durland mortgage could not be paid out of this fund and that the Stewart mortgage on annuity could be paid.
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Application for distribution of surplus funds in partition under section 1538 of the Code of Civil Procedure. Tbe executor claims that the fund should be paid over to him to be distributed. That the W. H. Gedney claim was outlawed for the reason that seven and one-half years had elapsed before the commencement of the partition suit, and that the Durland mortgage could not be paid out of this fund and that the Stewart mortgage on annuity could be paid. The referee found that the annuity mortgage had a preference over the Durland mortgage to the extent of recovery paid out of income to…
1Opinion of the Court
Fitzgerald, S.
— Judge VarNuk decided (30 Misc. Rep. 18) that the judgment of the Supreme Court directing the deposit in this court of the moneys in question in this proceeding was authority for the distribution thereof by the sumo-gate, and section 1538 of the Code of Civil Procedure, as it existed at the time of the rendition of the judgment and which was the warrant for the action of the Supreme Court, required the fund to be distributed as if the sale of the land from which it resulted had been made upon the decree of the surrogate. The referee, to whom it was referred by the surrogate to…
2Cases cited1 opinion
- In re the Estate of GedneyNew York Surrogate's Court · 1899