Opinion
January 29, 1962
Submission of controversy upon an agreed statement of facts pursuant to section 546 of the Civil Practice Act, for the purpose of determining the rights of the parties. Submission dismissed, without costs, and without prejudice to such further proceedings as the parties may be advised. Plaintiff and defendant are seller and purchaser, respectively, under a contract of sale of a parcel of real property. The controversy is whether plaintiff is the sole owner of the fee to the property and entitled to a judgment of a specific performance, or whether the heirs of his deceased mother own the fee as tenants in common with the plaintiff (the plaintiff being also one of such heirs). Plaintiff acquired his title by a deed from his mother. The granting clause of the deed stated that the grantor conveyed the subject property to plaintiff, "his heirs and assigns forever", but the subsequent habendum clause therein stated: "To have and to hold the premises * * * as tenant in common with the party of the first part herein" [the grantor]. The mother's heirs, in addition to plaintiff, are her husband and two other sons, one of whom is a minor. Since the heirs other than plaintiff have failed to join in this submission, a judgment declaring the rights of the parties should not be made ( Manhattan Storage Warehouse Co. v. Movers Warehousemen's Assn., 289 N.Y. 82; Wood v. City of Salamanca, 289 N.Y. 279; Wood v. Squires, 60 N.Y. 191; Kennedy v. Mayor, 79 N.Y. 361; Imlach v. Seigel, 199 App. Div. 343). Ughetta, Acting P.J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.