Real Property Actions & Proceedings

ARTICLE 11

PROCEEDING TO DISCOVER THE DEATH OF A TENANT FOR LIFE
Section 1101. Petition for production of tenant for life.
1102. Contents of petition.
1103. Service of petition and notice.
1104. Proceedings upon presentation of petition.
1105. Service of order; powers of court or referee.
1106. Habeas corpus.
1107. Report of referee.
1111. Dismissal of petition when order complied with.
1112. When life tenant deemed dead and petitioner let into
possession.
1121. Commission to be issued if life tenant is without the
state.
1122. General provisions respecting the commission.
1123. Petitioner to give notice of its execution.
1124. Execution thereof.
1125. Proceedings on return of commission.
1131. Costs.
1141. Property; when restored.
1142. Remedy of person evicted for rents and profits.
1143. Order not conclusive in ejectment.

S 1101. Petition for production of tenant for life. A person entitled
to claim real property after the death of another who has a prior estate
therein may, not oftener than once in each calendar year, apply by
petition to the supreme court, at a special term thereof, held within
the judicial district wherein the property or a part thereof is
situated, for an order directing the production of the tenant for life,
as prescribed in this article, by a person, named in the petition,
against whom an action of ejectment to recover the real property can be
maintained, if the tenant for life is dead or, where there is no such
person, by the guardian, husband, trustee, or other person, who has, or
is entitled to, the custody of the person of the tenant for life, or the
care of his estate.

S 1102. Contents of petition. The petition must be in writing and
verified by the affidavit of the petitioner, to the effect that the
matters of fact therein set forth are true. It must contain:
a. A description of the real property and a statement of the
petitioner`s interest therein and of such other facts as show that the
case is within the provisions of section 1101;
b. An averment that the petitioner believes that the person upon whose
life the prior estate depends is dead, together with a statement of the
grounds upon which the petitioner`s belief is founded.

S 1103. Service of petition and notice. A copy of the petition,
including the affidavit, together with notice of the time and place at
which the petition will be presented, must be personally served, at
least fourteen days before its presentation, upon the person required,
by the prayer thereof, to produce the tenant for life.

S 1104. Proceedings upon presentation of petition. Upon the
presentation of the petition and affidavit, with due proof, by
affidavit, of service of a copy thereof, and of the notice, if
sufficient cause to the contrary is not shown by the adverse party, the
court must either issue a commission, as prescribed in the following
sections of this article or make an order, directing the adverse party,
at a time and place therein specified, before the court, or a referee
therein designated, to produce the person upon whose life the prior
estate depends, or, in default thereof, to prove that he is living.

S 1105. Service of order; powers of court or referee. Where an order
requiring the production of the tenant for life, or proof that he is
living, is made as prescribed in section 1104, a certified copy thereof
must be served, at least fourteen days before the time therein
specified, upon the person required to make the production or proof, or
upon his attorney. Upon presentation of proof of service, by affidavit,
the court or the referee must, at the time and place specified in the
order, or at the time and place to which the hearing may be adjourned,
hear the allegations and proofs of the parties, respecting the identity
of any person produced, with the person whose death is in question or,
if the latter person is not produced, respecting the reasons for the
failure to produce him, and whether he is living. Where a referee is
appointed, he has the same powers, and is entitled to the same
compensation, as a referee appointed for the trial of an issue in a
civil action in a court of record.

S 1106. Habeas corpus. If it appears, by affidavit, to the
satisfaction of the court, that the person required to be produced is
imprisoned within the state, for any cause, except upon a sentence for a
felony, or is kept or detained, within the state, by any person, the
court may, either before or after making the order for production, issue
a writ of habeas corpus to bring him before it, or before the referee,
as the case requires. The writ must be served and executed, and
disobedience thereto may be punished, as where a writ of habeas corpus
is issued, to inquire into the cause of the detention of a prisoner.

S 1107. Report of referee. The referee must deliver his report to the
petitioner, or file it with the clerk, within ten days after the case is
closed. He must state therein whether any person was or was not produced
before him as being the person whose death is in question. He must
append thereto, in the form of depositions, the proofs, if any,
respecting the identity of any person so produced with the person whose
death is in question or if no one is so produced, upon the question
whether the latter person is living. He must also state in his report
his conclusions upon the questions controverted before him.

S 1111. Dismissal of petition when order complied with. If it appears
to the satisfaction of the court, upon the referee`s report and the
proofs thereto appended or, where a referee is not appointed, upon the
allegations and proofs of the parties before the court, that the party
required to produce the tenant for life, or to prove his existence, has
fully complied with the order, the court must make an order dismissing
the petition and requiring the petitioner to pay the costs of the
proceedings.

S 1112. When life tenant deemed dead and petitioner let into
possession. If it appears from the referee`s report, or upon the
hearing before the court, that the person upon whose life the prior
estate depends was not produced and if the party required to produce
him, or to prove his existence has not proved to the satisfaction of the
court that he is living, a final order must be made, declaring that he
is presumed to be dead, for the purpose of the proceedings, and
directing that the petitioner be forthwith let into possession of the
real property, as if that person was actually dead.

S 1121. Commission to be issued if life tenant is without the state.
If before or at the time of the presentation of the referee`s report to
the court, or, where a referee is not appointed, at any time before the
final order is made, the party upon whom the petition and notice are
served presents to the court presumptive proof, by affidavit, that the
person whose death was in question is, or lately was, at a place certain
without the state, the court must make an order requiring the petitioner
to take out a commission, directed to one or more persons residing at or
near that place, either designated in the order or to be appointed upon
a subsequent application for the commission, for the purpose of
obtaining a view of the person whose death is in question and of taking
such testimony respecting his identity as the parties produce. The order
must also direct that the proceedings upon the petition be stayed until
the return of the commission and that the petition be dismissed, with
costs, unless the petitioner takes out the commission within a time
specified in the order, and diligently procures it to be executed and
returned at his own expense.

S 1122. General provisions respecting the commission. It is not
necessary, unless the court specially so directs, that the witnesses to
be examined should be named in the commission, or that interrogatories
should be annexed thereto. The commission must be executed and returned,
and the deposition taken must be filed and used, as prescribed by law
for depositions taken without the state for use within the state, except
as otherwise specially prescribed in this article.

S 1123. Petitioner to give notice of its execution. The petitioner
must give to the adverse party, or his attorney, written notice of the
time when, and the place where, the commissioner or commissioners will
attend, for the purpose of executing the commission, as follows:
a. If the place, where the commission is to be executed, is within the
United States, or the dominion of Canada, he must give at least two
months` notice;
b. If it is within any of the West India islande, he must give at
least three months` notice;
c. In every other case, he must give at least four months` notice.
Notice may be given, as required by this section, by serving it as
prescribed by law for the service of a paper upon an attorney in a civil
action in the supreme court.

S 1124. Execution thereof. The commissioner or commissioners possess
the same powers, and must proceed in the same manner, as a referee,
appointed by an order requiring the production of the tenant for life,
or proof of his existence; except that they cannot proceed unless a
person is produced before them, as being the person whose death is in
question. The return to the commission must expressly state whether any
person was or was not so produced. The testimony respecting the identity
of a person so produced must be taken, unless otherwise specially
directed by the court, as prescribed by law, for taking the deposition
of a witness upon oral interrogatories except that it is not necessary
to give any other notice of the time and place of examination than that
prescribed in section 1123.

S 1125. Proceedings on return of commission. Upon the return of the
commission, the proceedings are the same as upon the report of a
referee, as prescribed in sections 1111 and 1112; but the court may, in
its discretion, receive additional proofs from either party.

S 1131. Costs. Where costs of a special proceeding taken as prescribed
in this article are awarded, they must be fixed by the court at a gross
sum, not exceeding fifty dollars, in addition to disbursements. Where
provision is not specially made in this article for the award of costs,
they may be denied, or awarded to or against either party, as justice
requires.

S 1141. Property; when restored. The possession of real property,
which has been awarded to the petitioner as prescribed in this article,
upon the presumption of the death of the person upon whose life the
prior estate depends, must be restored, by the order of the court, to
the person evicted, or to his heirs or legal representatives, upon the
petition of the latter and proof, to the satisfaction of the court, that
the person presumed to be dead is living. The proceedings upon such an
application are the same as prescribed in this article upon the
application of the person to whom possession is awarded.

S 1142. Remedy of person evicted for rents and profits. A person
evicted as prescribed in this article may, if the presumption upon which
he is evicted is erroneous, maintain an action against the person who
has occupied the property, or his executor or administrator, to recover
the rents and profits of the property, during the occupation, while the
person upon whose life the prior estate depends is or was living.

S 1143. Order not conclusive in ejectment. A final order made as
prescribed in this article, awarding to the petitioner the possession of
real property is presumptive evidence only, in an action of ejectment
brought against him by the person evicted, or in an action brought as
prescribed in section 1142, of the life or death of the person, upon
whose life the prior estate depends.