Bernard Leopold, Plaintiff, v. Abraham Heymann, Defendant

Bernard Leopold, Plaintiff, v. Abraham Heymann, Defendant. Second Department, June 5, 1914. Appellate Division — submission of controversy — statement of evidentiary facts only insufficient. Evidentiary facts in an agreed statement, with no ultimate facts, do not present a case for disposition by the Appellate Division under section 1379 of the Code of Civil Procedure. Where an agreed statement of facts merely sets forth that in a prior action to determine claims to real property an effort was made to reach and bar one L. and wife and other defendants whose existence was in doubt, and the summons ran against L. and three other persons named, or if dead, against them widows, heirs and grantees, the court will not decide whether jurisdiction was acquired over the necessary parties so as to cut off them possible adverse interests, but the proceeding will be dismissed without prejudice to relief by action. (Cerfv. Diener, 310 N. Y. 156,163, followed.) Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Adam Christmann, Jr., for the plaintiff. Harry Percy David, for the defendant. [MAJORITY — Per Curiam:] Per Curiam: Plaintiff and defendant entered into a contract for the sale of Flatbush land, for which plaintiff agreed to pay $7,500. The plaintiff, however, objected to the title on account of the form of the summons in a prior action under section 1638 of the Code of Civil Procedure to determine claims to real property. In this action an effort was made to reach and bar William Lyons and wife, and other defendants, whose existence was in doubt, so that the summons ran against William Lyons and three other persons named, or if dead, against their widows and heirs and grantees, all of whom had been proceeded against through service by publication. Upon this submission the court is asked whether, in this prior suit, jurisdiction over the necessary parties has been acquired, so as to cut off such adverse possible interests. On an agreed statement of facts this court can draw no inferences, and is bound strictly to the facts set out as conceded. Herein we are different from a trial court, which could infer the conclusions to which these facts point. Such evidentiary facts in an agreed statement, with no ultimate facts, do not present a case for disposition by this court under section 1279 of the Code of Civil Procedure. Hence we have to dismiss these proceedings without prejudice to relief by an action, and without costs to either party, following Cerf v. Diener (210 N. Y. 156, 162). Jenks, P. J., Burr, Rich, Stapleton and Putnam, JJ., concurred. Proceedings dismissed, without prejudice to relief by an action, and without costs to either party, following Cerf v. Diener (210 N. Y. 156, 162).