NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
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
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.
1141. Property; when restored.
1142. Remedy of person evicted for rents
1143. Order not conclusive in ejectment.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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
Sec. 1112. WHEN LIFE TENANT DEEMED DEAD AND PETITIONER LET
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.
Sec. 1121. COMMISSION TO BE ISSUED IF LIFE TENANT IS WITHOUT
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
Sec. 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.
Sec. 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 islands, he must give
at least three months' notice;
c. In every other case, he must give at least four months'
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.