Opinion
December 29, 1942.
Dora Trevas, the respondent herein, upon the petition and upon all the pleadings and proceedings had in a Torrens proceeding, made a motion for an order opening the Torrens proceeding and for the taking of proof upon the matters set forth in the petition and asking that the order in the Torrens proceeding be vacated and annulled on the grounds that fraud had been practiced upon the court in the Torrens proceeding. The appellants herein made a cross-motion to dismiss the petition on the ground that the petition on its face did not state a cause of action and that the exclusive remedy of the petitioner was by section 392 Real Prop. of the Real Property Law of the State of New York (Cons. Laws, ch. 50). The court denied the motion of the appellants to dismiss the petition and extended the time of the appellants to answer for ten days after the service of the order on the motion and notice of entry and it further ordered that after the filing of the answer the matter be referred to the Justice of the Supreme Court holding the October, 1942, Term, to be held at Monticello, New York, for the further disposition of said application. The order dismissing the cross-motion was proper and should be affirmed. The relief asked for by the petitioner as to the opening of the Torrens proceeding has never been decided and is not appealable. Order dismissing cross-motion affirmed, with ten dollars costs. Appeal from the order denying the application to open the proceeding dismissed with ten dollars costs. Appellants-respondents are given leave to answer the petition within ten days after the service of the order to be entered on this decision, and notice of entry thereof, and the matter is remitted to the term of the Supreme Court held at Monticello, N.Y., beginning on the first Monday of February, 1943. Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ., concur.