Opinion
December 18, 1959
Patrick Beary for plaintiff.
Harald R. Topken for defendants.
Motion by plaintiff for judgment on the pleadings. Cross motion by the defendants for an order dismissing the complaint.
Plaintiff seeks partition of a parcel of real property located in Queens County. Plaintiff and the four defendants are the children and sole distributees of Henrietta Kunkel who died intestate on January 20, 1959. This action was commenced on March 2, 1959. The administrator of the mother's estate has not been made a party to the action; neither is there any allegation that no administrator has been appointed.
Section 1019 of the Civil Practice Act provides that an executor or an administrator must be made a party defendant in an action for partition where the action has been brought within 18 months after letters have been issued. Plaintiff points out that he brought this action before letters were issued. This does not obviate the necessity of complying with the further requirement of section 1019 which provides that if no executor or administrator has been appointed that fact must be alleged in the complaint. The complaint is therefore insufficient.
It is customary in dismissing a complaint for insufficiency to grant leave to amend where the defect can be cured. In the instant case, however, an administrator has now been appointed and an allegation that no administrator has been appointed could not now be made. It further appears that the decedent left other real property which has not been included in this action. (Cf. Civ. Prac. Act, § 1013.) Under the circumstances leave to amend will not be granted. Plaintiff's motion for judgment on the pleadings is denied and defendants' motion to dismiss the complaint is granted. Submit order.