Abbott v. . James
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made Hay 14, 1888, which affirmed a judgment entered upon an order sustaining a demurrer to the plaintiff’s complaint. This action was brought to compel specific performance on the part of defendant, the purchaser, of a contract to purchase certain real estate.
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Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made Hay 14, 1888, which affirmed a judgment entered upon an order sustaining a demurrer to the plaintiff’s complaint. This action was brought to compel specific performance on the part of defendant, the purchaser, of a contract to purchase certain real estate. The complaint alleged, in substance, that Augustine Barker died in 1877, leaving no personal property, but seized of the real estate in question; that he left him surviving no parent, child or descendant but his widow,…
1Opinion of the CourtFinch, J.
The majority of the court are of opinion that the question upon which the validity of the purchaser’s title depends is so doubtful that we ought not to decide it, and compel an acceptance of the deed in the absence of and without hearing the heirs-at-law whose rights depend upon the same question. We have acted upon that basis many times; generally, it is true where the doubt arose upon the facts, but sometimes, I think, where the question was one of law. (Jordan v. Poillon, 77 N. Y. 518; Fleming v. Burnham, 100 N. Y. 8.) The ultimate inquiry here presented is whether the power of sale given…
2Cases cited2 opinions
- Fleming v. . BurnhamNew York Court of Appeals · 1885
- Jordan v. . PoillonNew York Court of Appeals · 1879
3Cited by17 opinions
- Gates v. ParmlyWisconsin Supreme Court · 1896
- Hayes v. . NourseNew York Court of Appeals · 1889
- Lynbrook Gardens, Inc. v. UllmannNew York Court of Appeals · 1943
- Wright v. MayerAppellate Division of the Supreme Court of the State of New York · 1900
- Whelan v. RossiterCalifornia Court of Appeal · 1905
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