From Casetext: Smarter Legal Research

Matter of Yancey

Court of Appeals of the State of New York
Oct 21, 1954
122 N.E.2d 746 (N.Y. 1954)

Opinion

Argued October 5, 1954

Decided October 21, 1954

Appeal from the Supreme Court, Appellate Division, Second Department, DAVIS, J.

Melvel W. Snitow and Sydney Snitow for appellant.

Stephen Holden, Jr., for respondent.


The order of the Appellate Division and that of the Special Term of the Supreme Court should be reversed, and the petition dismissed, without costs. Aside from the facts that the petition is fatally defective, that there is no proof in the record that the corporate appellant is the true successor of the unincorporated association, and that the unappealed judgment of the Supreme Court in the previous foreclosure action is conclusive upon the parties ( Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14, 17; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304; Reich v. Cochran, 151 N.Y. 122, 127-128; Pray v. Hegeman, 98 N.Y. 351, 358), the Supreme Court was without power, either under subdivision 9 of section 12 of the Religious Corporations Law, or under section 113 of the Real Property Law, to grant the order appealed from. Said order is invalid, since, by statutory exception, subdivision 9 of section 12 of the Religious Corporations Law permits nunc pro tunc validation of mortgages executed by incorporated religious associations only; in other cases, the general principles governing nunc pro tunc orders apply ( Mohrmann v. Kob, 291 N.Y. 181, 186; Merrick v. Merrick, 266 N.Y. 120; Stock v. Mann, 255 N.Y. 100; Guarantee Trust Safe Deposit Co. v. Philadelphia, Reading New England R.R. Co., 160 N.Y. 1, 7; Mishkind-Feinberg Realty Co. v. Sidorsky, 111 App. Div. 578, 583).

The order of the Appellate Division and that of the Supreme Court should be reversed, and the petition dismissed, without costs.

LEWIS, Ch. J., CONWAY, DESMOND, DYE, FULD, FROESSEL and VAN VOORHIS, JJ., Concur.

Orders reversed, etc.


Summaries of

Matter of Yancey

Court of Appeals of the State of New York
Oct 21, 1954
122 N.E.2d 746 (N.Y. 1954)
Case details for

Matter of Yancey

Case Details

Full title:In the Matter of INEZ YANCEY, Respondent. NEW CHAPEL BAPTIST CHURCH…

Court:Court of Appeals of the State of New York

Date published: Oct 21, 1954

Citations

122 N.E.2d 746 (N.Y. 1954)
122 N.E.2d 746

Citing Cases

Berlin v. New Hope Holiness Ch. of God, Inc.

Contrary to plaintiff's argument, these sections were not intended to sanction or authorize the manner in…

Solar Line, Universal Great Bhd., Inc. v. Prado

AHL also contends that the Supreme Court erred in determining that the deed is void, inasmuch as the deed is…