Real Property Actions & Proceedings

ARTICLE 12

OTHER ACTIONS AND PROCEEDINGS BETWEEN CO-OWNERS OR OWNERS OF
SUCCESSIVE INTERESTS
Section 1201. Action by joint tenant or tenant in common; may maintain
action against co-tenant.
1211. Action by joint tenant, tenant in common or tenant by the
entirety for extinguishment of missing co-tenant`s
estate upon deposit of its value.
1221. Action to sell preemptive rights against the city of New
York.

S 1201. Action by joint tenant or tenant in common; may maintain
action against co-tenant. A joint tenant or a tenant in common of real
property, or his executor or administrator, may maintain an action to
recover his just proportion against his co-tenant who has received more
than his own just proportion, or against his executor or administrator.

S 1211. Action by joint tenant, tenant in common or tenant by the
entirety for extinguishment of missing co-tenant`s estate upon deposit
of its value. 1. Where real property is held by two or more persons in
their own right as tenants in common, joint tenants or tenants by the
entirety and one of such tenants is missing under circumstances which
afford reasonable ground to believe that he is dead, the other tenants
or tenant may maintain an action in the supreme court to obtain a
determination of the value of the estate of the missing co-tenant and a
judgment extinguishing the estate of the missing co-tenant upon payment
into court for his credit of the amount so determined to be the value of
his estate.
Persons known or unknown who are or may be the devisees or
distributees of a missing co-tenant may be joined as defendants in such
action.
2. (a) Service upon the missing co-tenant shall be made in the manner
provided for service in an action in which the complaint demands
judgment that the person to be served be excluded from a vested or
contingent interest in specific real property in this state. In
addition, the court, at any stage of such action, may direct that notice
of the action be published at or near the place where the co-tenant,
when last heard from, was known or believed to be.
(b) The court may, in its discretion, appoint a guardian ad litem to
represent the interests of the missing co-tenant, or of persons who are
or may be his devisees or distributees.
3. A finding of reasonable ground to believe that the missing
co-tenant is dead may be made, for purposes of this section, either (a)
upon proof that the co-tenant has been absent from his usual place of
abode for seven successsive years last past, and that a diligent search
has been made to discover evidence that he is living and that no such
evidence has been found, or (b) upon proof of other circumstances from
which the probability that the missing co-tenant is dead may reasonably
be inferred, although the period of his absence is less than seven
years, provided that such period is not less than one year.
4. Relief extinguishing the estate of the missing person shall be
deemed equitable and shall be granted in the discretion of the court.
However, no such relief shall be granted if the court shall find as a
fact that the missing person is dead. In such event, the judgment
dismissing the complaint shall state such determination, but shall not
be deemed an adjudication of death of the missing person for any purpose
other than the dismissal of the complaint and shall not be controlling
in any other action or proceeding, whether or not between the same
parties, in which the fact of death of the missing person is in issue.
5. The finding of reasonable ground to believe that the missing person
is dead shall be made, and the value of the property and of the estate
of the missing co-tenant shall be determined, by the court without a
jury or by a referee.
6. The value of the estates of tenants by the entirety shall be deemed
equal. The proportionate shares of joint tenants and tenants in common
shall be determined in like manner as in an action for partition.
7. Costs of the action, and fees and disbursements of a guardian ad
litem appointed to represent the interests of the missing co-tenant or
his devisees or distributees shall be assessed against the parties in
such proportions as the court shall direct and the part thereof assessed
against the missing person shall be charged against the value of the
estate of the missing person.
8. A judgment extinguishing the estate of the missing co-tenant shall
be conclusive even though the missing person was in fact alive, or was
in fact dead, at the date of the entry thereof, and shall be conclusive
against (a) any person claiming under the missing person by title
accruing or conveyance recorded after the filing of the judgment-roll,
or of the notice of pendency of the action, and (b) any person claiming
under the missing co-tenant who is made a party to the action. The
judgment shall also have like effect as a conveyance made by the missing
co-tenant or by the missing co-tenant and the other co-tenant or
co-tenants, conveying the premises to the co-tenant or co-tenants in
accordance with their interests resulting from the judgment. The court
may direct that an instrument of conveyance in conformity with the
judgment be executed and delivered by the sheriff in the name of the
co-tenant.

S 1221. Action to sell preemptive rights against the city of New York.
1. In all cases where several persons are the owners, or claim to be the
owners of any real estate or chattels real lying within the bounds of
the city of New York, having different estates, or estates in common
therein, in possession, remainder, or reversion, and which such persons
shall, by virtue of such ownership, or claim to such ownership, be
entitled, or claim to be entitled, by law to a preemptive right to have,
take, or demand the grant or lease of any other land, or easement in
land, from such city, the supreme court shall have power, and such court
is hereby vested with full power and authority, on the application of
either of such owners, or of such city, to decree an absolute sale and
conveyance of such right of preemption, and to make such disposition of
the net moneys arising from such sale, after the payment of the costs
and expenses of the proceedings, as shall be just and proper, according
to the rights and interests of such several owners.
2. Whenever any owner shall reside in the city of New York, notice of
such intended application shall be served personally on such owner, or
by leaving the same at his dwelling-house with some person of suitable
age and discretion at least twenty days before such application is made;
and in all cases where such owner shall reside out of such city and
within any of the United States, and such place of residence be known to
the applicant, such notice shall be served by mail, addressed to such
owner at his place of residence, at least three months before such
application is made. Proof of such service by affidavit shall be made to
the court before any order of sale shall be made. Any of the parties to
such suit may become the purchaser on such sale. 3. In all cases where
any owner shall be an infant, a guardian shall be appointed for such
infant, who shall give the like security, and possess the like powers,
and discharge the like duties as in cases for the partition of lands.
4. Such sale shall be made and conducted on like notice by the like
officer, and in the same manner and form as sales of real estate on the
foreclosure of a mortgage by virtue of a decree or order of such court,
and a deed of conveyance for such right of preemption shall in like
manner be executed and delivered to the purchaser, which deed shall vest
in the purchaser absolutely all the claim, right, title, and interest of
the owner of such right of preemption, and every of them, of, in or to
such right of preemption thus sold and conveyed; provided always, in
every case the applicant shall give six weeks` previous notice of such
intended application if the owners entitled by law to such preemption
right are residents, and six months` previous notice of such intended
application if the owners entitled by law to such preemption right are
non-residents of the state, by publication for three months
successively, twice in each week, in two of the daily papers published
in such city prior to such application to the court for an order of
sale; and provided also, that the court shall be satisfied that such
order of sale shall not interfere with or impair the obligation
contained in any lease or contract made by such city to or with any
person or persons whatsoever.
5. Whenever a right of dower, whether inchoate or consummate, a
tenancy by curtesy, or any other estate for life or for years shall have
existed in the preemptive rights so sold and conveyed, the owner of such
particular estate in the rights sold is entitled to receive from the
moneys arising from such sale either a sum in gross or the earnings of a
sum invested for his benefit. The determination as to whether a sum in
gross or the earnings of a sum invested shall be awarded to the owner of
such particular estate shall be governed by the provisions of section
968 with respect to the proceeds of a sale in partition.