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Muck v. Hitchcock

Supreme Court of New York, Appellate Division

March 6, 1912

ELVIRA E. MUCK, Appellant,
S. EDWARD HITCHCOCK and Others, Respondents, Impleaded with THE AMERICAN MILLENNIAL ASSOCIATION, Defendant.

Page 324

APPEAL by the plaintiff, Elvira E. Muck, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 24th day of April, 1911, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing the complaint upon the merits.

The action was commenced on the 12th day of July, 1909, to obtain specific performance of a contract for the sale of a parcel of real property situate in the county of Livingston, entered into between the defendant corporation and the plaintiff, it being alleged that the defendant after the making of the contract deeded the property to the other defendants and refused to carry out its contract with the plaintiff. The plaintiff asked that the defendants be directed to convey the premises to the plaintiff, or if such relief could not be had,

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that the said corporation be compelled to respond in damages for the breach of the contract. The summons was served by publication upon the defendant corporation and by personal service without the State upon one of its officers. The corporation did not appear or answer in the action. The other defendants answered and set up the defense, in substance, that the plaintiff's contract was fraudulently obtained from the said corporation and should be canceled; that the plaintiff abandoned the contract, and that thereafter the premises were sold to such defendants.


Milton E. Gibbs, for the appellant.

Albert C. Olp and J. Hunter Black, for the respondents.


On this appeal the appellant presents none of the evidence taken before the court, but simply the judgment roll in the action. The court made certain findings of fact, from which it appears that the defendant American Millennial Association is a foreign religious corporation, organized under the laws of Massachusetts, and had, at some time prior to the commencement of this action, acquired by devise the premises in question, a farm located in Livingston county, N.Y. Thereafter and on February 21, 1908, the plaintiff entered into a written contract with the corporation whereby it agreed to sell the farm to the plaintiff for the sum of $600, $50 of which was paid on signing the contract. The balance was to be paid and the deed delivered on July 1, 1908. The plaintiff notified the defendant before that date that she was ready to fulfill her contract upon delivery of the deed to her. The corporation replied, suggesting that plaintiff prepare the deed. This was not done, however, until about December 1, 1908, when a tender of the balance due was made at the office of the corporation in Boston, but the corporation refused to accept the same or to sign any deed, and also refused to return the $50 which the plaintiff had paid on account of the contract. On or about January 29, 1909, the defendant corporation entered into a contract with the defendant Welch to sell the farm to him for $1,400. Thereafter the corporation took proceedings in the Livingston

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County Court, and obtained an order authorizing it to sell the farm to Welch for $1,400, and a deed was executed and delivered accordingly to the defendant Hitchcock, the assignee of Welch. So far as appears the plaintiff was not a party to and had no notice of such proceedings. No proceedings were ever taken to obtain leave of the court permitting the defendant to sell the farm to the plaintiff in pursuance of the contract entered into or otherwise. It is alleged that the plaintiff's contract was filed in the Livingston county clerk's office in August, 1908, and the court has found that the defendants Hitchcock and Welch knew of the contract which the defendant corporation had made with the plaintiff before they purchased the farm. Upon these facts the court has found that the contract entered into between the said association and the plaintiff for the sale of said farm cannot be enforced in this action because no permission of the court had been ever obtained for the making of said contract or the sale of the lands to the plaintiff, and that the defendants are entitled to a judgment dismissing the complaint, without costs.

Section 12 of the Religious Corporations Law of the State of New York provides: 'A religious corporation shall not sell or mortgage any of its real property without applying for and obtaining leave of the court therefor pursuant to the provisions of the Code of Civil Procedure.' (Consol. Laws, chap. 51 [Laws of 1909, chap. 53], § 12, which re-enacted Gen. Laws, chap. 42 [[Laws of 1895, chap. 723], § 11, as amd. by Laws of 1902, chap. 208, and Laws of 1908, chap. 363.) Section 21 of the General Corporation Law of this State provides: 'Any foreign corporation may purchase at a sale upon the foreclosure of any mortgage held by it, or, upon any judgment or decree for debts due it, or, upon any settlement to secure such debts, any real property within this State covered by or subject to such mortgage, judgment, decree or settlement, and may take by devise any real property situated within this State and hold the same for not exceeding five years from the date of such purchase, or from the time when the right to the possession thereof vests in such devisee, and convey it by deed or otherwise in the same manner as a domestic corporation.' (Consol. Laws, chap. 23 [Laws of 1909, chap. 28], § 21, which re-enacted Gen. Laws,

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chap. 35 [Laws of 1892, chap. 687], § 18, as amd. by Laws of ...

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