Emma Bauman, Appellant, v. Mary A. Goldthorpe, as Administratrix, etc., of Mary McDonald, Deceased, Respondent

Emma Bauman, Appellant, v. Mary A. Goldthorpe, as Administratrix, etc., of Mary McDonald, Deceased, Respondent. Second Department, November 27, 1908. Real property — vendor and purchaser — agreement by administrator to sell lands prior to decree authorizing sale — specific performance. A contract to sell lands made by an administrator prior to a decree of the surrogate empowering him to sell and the filing of the bond required by the statute is void, and the vendee cannot compel specific performance although the administrator subsequently obtains permission to sell. Appeal by the plaintiff, Emma Bauman, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 30th day of June, 1908, upon the decision of the court, rendered after a trial at the Queens County Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges that after the defendant was appointed administrator of Mary McDonald, who had died intestate, the plaintiff entered into a written contract with such administrator, to sell certain land of the deceased for a price fixed by the said contract, the conveyance to be made when the said administrator should have obtained permission of the Surrogate’s court to sell and convey the same; that the administrator thereafter obtained such permission but refused to carry out such contract. Specific performance was prayed for. Charles B. Mason, for the appellant. Gregg, Frank & De Witt, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The demurrer that the complaint did not state facts sufficient was properly sustained. On petition by an administrator of an intestate the Surrogate’s court may make a decree empowering him to sell real estate of the intestate to pay debts and funeral expenses; and thereupon, but after first filing in the said court his bond with two sureties, in a penalty to be fixed by the Surrogate, for, the faithful per formance of his duties, he shall have the same power of sale of such real estate as if he were acting as executor under a will of the decedent containing a power of sale of real estate to pay .debts and funeral expenses (Code Civ. Pro. §§ 2750 et seq.). Until such decree has been made, and he is under the sanction of such bond, he has no power to make a contract of sale. If he make one it is void. The interlocutory judgment should be affirmed.' Woodward, Hooker, Rich and Miller, JJ., concurred. Interlocutory judgment affirmed, with costs.