Leopold v. Heymann

Plaintiff and defendant entered into a contract for the sale of Flatbush land, for which plaintiff agreed to pay $7,500. The plaintiff, however, objected to the title on account of the form of the summons in a prior action under section 1638 of the *17Code of Civil Procedure to determine claims to real property. In this action an effort was made to reach and bar William Lyons and wife, and other defendants, whose existence was in doubt, so that the summons ran against William Lyons and three other persons named, or if dead, against their widows and heirs and grantees, all of whom had been proceeded against through service by publication. Upon this submission the court is asked whether, in this prior suit, jurisdiction over the necessary parties has been acquired, so as to cut off such adverse possible interests.

On an agreed statement of facts this court can draw no inferences, and is bound strictly to the facts set out as conceded. Herein we are different from a trial court, which could infer the conclusions to which these facts point. Such evidentiary facts in an agreed statement, with no ultimate facts, do not present a case for disposition by this court under section 1279 of the Code of Civil Procedure.

Hence we have to dismiss these proceedings without prejudice to relief by an action, and without costs to either party, following Cerf v. Diener (210 N. Y. 156, 162).

Jenks, P. J., Burr, Rich, Stapleton and Putnam, JJ., concurred.

Proceedings dismissed, without prejudice to relief by an action, and without costs to either party, following Cerf v. Diener (210 N. Y. 156, 162).