Opinion
Argued March 20, 1934
Decided April 17, 1934
Appeal from the Supreme Court, Appellate Division, First Department.
John Vance Hewitt, Gilman L. Sessions and Henry M. Bellinger for appellant.
Eugene A. Sherpick, Harold R. Medina, Myles B. Amend and John W. Jordan for respondents.
The necessary and considered effect of the decision of this court on the prior appeal ( Gedney v. Marlton Realty Co., 258 N.Y. 355) was the invalidity of the special act of 1865 (Laws of 1865, ch. 154) as a whole. "The act of 1865, however, was enacted for the benefit of the life tenant, Rebecca T. Rice, and was not an authorization for an infant's proceeding for the benefit of Eloise Tonnele" (p. 361). The sale under the statutory proceeding was, therefore, of as little avail against the interest of Eloise Tonnele as it was against the adult interests. Moreover, the clearly expressed purpose of the statute was to "authorize the sale in fee simple absolute of the lots and real estate" therein mentioned. The clear invalidity of the statute as to non-consenting adult remaindermen entirely frustrated its purpose. Under such circumstances there may be no severance.
Whether John Tonnele, II, died testate or intestate as to the premises in question is concededly immaterial in this particular suit. Nor do we see any substantial basis for the application of the doctrine of estoppel.
The judgments should be affirmed, with costs.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur; KELLOGG, J., not sitting.
Judgments affirmed.