Legal Opinion · Concurrence

Allen v. Kelly

Appellate Division of the Supreme Court of the State of New York

Decided November 15, 1900Published

Appeal by the plaintiff, John S. Allen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 31st day of January, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term dismissing the complaint.

1Concurrence

Adams, P. J.:

I concur in so much of the opinion of Mr. Justice Williams as decides that the failure to issue an execution upon the surrogate’s decree and to have the same returned did not defeat the plaintiff’s right of action; "but I am constrained to dissent from his conclusion respecting the liability of the sureties for the moneys received by the general guardian upon the sale of the infant’s real estate.

Confessedly the proceedings for such sale were' irregular, and while, as between the infant and his general guardian, such irregularities might be waived by the former upon his reaching…

2Cases cited2 opinions

  1. Johnson v. AyresAppellate Division of the Supreme Court of the State of New York · 1897
  2. Muir v. WilsonNew York Court of Chancery · 1825

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