NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
JUDICIAL AUTHORIZATION OF SALE, LEASE, MORTGAGE,
ACQUISITION, EXCHANGE OR VOLUNTARY PARTITION
Section 1601. Application by trustee for court
authorization to mortgage, to lease, to sell,
to acquire or to exchange real property or
for confirmation of a lease of real property.
1602. Application by owner of present or
future interest for court authorization to
mortgage, to lease or to sell real property.
1603. Court to which application is to be made.
1604. When application shall be granted.
1605. Contents of petition.
1606. Notice of application.
1607. Service of notice upon presumptive
members of class.
1608. Guardians ad litem.
1609. Final order upon the application.
1610. Final order authorizing acquisition
or exchange of land or confirming lease;
execution and binding force.
1611. Final order; appointment of referee.
1612. Report of agreement for confirmation.
1613. Order of confirmation; contents and
1614. Binding force of mortgage, sale or
lease duly made with judicial approval.
1615. Date of creation of affected interests.
1616. Application to compensation arising
out of appropriation of real property by the
1641. Executors', fiduciaries' and
trustees' conveyances to certain corporations
in exchange for certain stocks and bonds
authorized and regulated.
1651. Proceedings for voluntary partition
of infant's, incompetent's or conservatee's
Sec. 1601. APPLICATION BY TRUSTEE FOR COURT AUTHORIZATION TO
MORTGAGE, TO LEASE, TO SELL, TO ACQUIRE OR TO
EXCHANGE REAL PROPERTY OR FOR CONFIRMATION OF A
LEASE OF REAL PROPERTY.
1. When the assets of a trust include an interest in real
property, the trustee may apply to the court designated in
section 1603, and in the case of a testamentary trust, to
the court having jurisdiction thereof, for an order
authorizing such trustee to mortgage, to lease or to sell
such real property or a part thereof; or to acquire land
adjacent to such real property or to exchange a portion of
such real property for lands adjacent to such real property
when either such acquisition or exchange would tend to
improve the boundary lines of such real property; or to
confirm a lease for a term longer than ten years made by a
trustee of such real property without obtaining prior
authorization by a court.
2. An application for an order authorizing a trustee to acquire
land adjacent to real property in which the trustee has an
interest, or as to which he has a power of sale, may also be
made when such real property and the adjacent land to be
acquired have the same building or physically connected
Sec. 1602. APPLICATION BY OWNER OF PRESENT OR FUTURE INTEREST
FOR COURT AUTHORIZATION TO MORTGAGE, TO LEASE OR
TO SELL REAL PROPERTY.
When the ownership of real property is divided into one or more
possessory interests and one or more future interests, the owner
of any interest in such real property or in the proceeds to be
derived therefrom on a directed sale thereof, except the owner of
a possessory estate in fee simple absolute therein, may apply to
the court designated in section 1603 for an order directing that
said real property, or a part thereof, be mortgaged, leased or
sold. If any such owner is an infant or otherwise under
disability, the application can be made on behalf of such person,
by the person duly authorized by law to care for his property
Sec. 1603. COURT TO WHICH APPLICATION IS TO BE MADE.
An application made pursuant to the provisions of either section
1601 or section 1602 shall be made to a term of the supreme court
held within the judicial district in which the real property, or
a part thereof, is situated.
Sec. 1604. WHEN APPLICATION SHALL BE GRANTED.
The court to which an application has been duly made pursuant to
the provisions of either section 1601 or section 1602 is
authorized to grant such application upon such terms as to it
shall seem proper, if satisfied from the proceedings theretofore
duly had, that the act to be authorized is expedient; or that the
lease sought to be confirmed is one, the authorization of which
would be expedient. The granting of such an application is not
necessarily precluded by the fact that it is opposed by one or
more persons having interests in the affected real property; or
by the fact that the granting thereof will be in contravention of
a provision contained in the instrument creating some or all of
the interests in the affected real property.
Sec. 1605. CONTENTS OF PETITION.
An application made pursuant to the provisions of either section
1601 or section 1602 shall be by duly verified petition which
must contain the following:
1. A description of the affected real property with reasonable
2. A specification of the rights, shares and interest in such
real property, and of the names of the owners thereof, as
far as the same are known to the petitioner, together with
the facts determining such interests and each of them;
3. The special facts alleged to make the granting of the
application proper in accordance with the provisions of
4. Any other allegation required by statute, or by rule of
Sec. 1606. NOTICE OF APPLICATION.
1. The notice of an application made pursuant to the provisions
of either section 1601 or section 1602 shall be given to
each person in being who has an interest in the affected
real property, or in the proceeds to be derived therefrom
upon a directed sale thereof; or who is a beneficiary of a
trust created relative thereto; or who has a power to
appoint or to dispose of an interest therein, or in its
proceeds; or who is an appointee under such a power
2. Such notice shall be given in the manner following:
a. If such person is a competent adult within this state,
by service upon him personally of a written notice
stating the time, place and purpose of the application,
at least eight days prior to the presentation thereof;
b. In all other cases in such manner as the court which
the application is to be made shall prescribe.
Sec. 1607. SERVICE OF NOTICE UPON PRESUMPTIVE MEMBERS OF
When an interest in the affected real property has been limited
to a class, service of the notice of the application upon those
persons in being who are the presumptive members of such class at
the moment immediately before the application is made shall be
sufficient service as to such interest. If no such presumptive
members of the class exist, the provisions of section 1608 apply.
Sec. 1608. GUARDIANS AD LITEM.
1. On the return day of the motion made pursuant to the
provisions of either section 1601 or section 1602 the court
shall appoint a guardian ad litem for any minor or other
person under disability who is a party to the proceeding and
is not represented by a duly acting guardian, committee or
2. On the return day of the motion made pursuant to the
provisions of either section 1601 or section 1602, if it
appears that a future interest in the affected real property
has been so limited that as yet there are neither certain
nor presumptive owners thereof in being or ascertained, the
court shall appoint a guardian ad litem to represent and to
protect the possible interests of the person or persons who
eventually may become entitled to such real property, or to
an interest therein, under such limitation. The granting of
an application is not necessarily precluded by the fact that
as yet no person other than the applicant is in being, who
can acquire a beneficial or possessory interest in the
affected real property.
Sec. 1609. FINAL ORDER UPON THE APPLICATION.
After taking proof of the facts, either before the court or a
referee, and hearing the parties and fully examining into the
matter, the court must make a final order upon the application.
In case the application is granted in whole or in part, the final
order shall specify the real property to be mortgaged, leased,
sold, acquired, exchanged or as to which a previously made lease
is to be confirmed, and the terms and conditions upon which the
authorized transaction is to be consummated or approved.
Sec. 1610. FINAL ORDER AUTHORIZING ACQUISITION OR EXCHANGE OF
LAND OR CONFIRMING LEASE; EXECUTION AND BINDING
When the final order authorizes the acquisition or exchange of
land, the trustee, upon whose application the order was made,
shall execute the provisions of such order. Any acquisition or
exchange of land so made or any previously made lease which is
confirmed, shall have the same binding force upon the interests
of the beneficiaries of such trust and upon the interests of all
other persons in such real property as is stated in section 1614.
Sec. 1611. FINAL ORDER; APPOINTMENT OF REFEREE.
When the final order authorizes a mortgage, lease or sale upon
the application of a person who is not trustee, the court in such
final order must appoint a referee to execute the authorized
transaction. When the application has been made by a trustee,
such trustee shall execute the authorized transaction.
Sec. 1612. REPORT OF AGREEMENT FOR CONFIRMATION.
Before a mortgage, lease or sale is made pursuant to a final
order described in section 1609, the trustee or referee must
enter into an agreement therefor, subject to the approval of the
court, and must report this agreement to the court under oath.
Sec. 1613. ORDER OF CONFIRMATION; CONTENTS AND SUBSEQUENT
1. When the agreement reported to the court pursuant to the
provisions of section 1612 appears to the court to conform
in all particulars to the final order authorizing the
transaction, an order shall be made approving and confirming
the agreement and directing the trustee or referee to
execute and to deliver the mortgage, lease or deed of such
real property which is required thereby. No order of
confirmation shall be withheld on the ground that the market
value of such real property has changed between the
execution of such agreement and the hearing of the
application for confirmation thereof.
2. The order of confirmation, in the discretion of the court,
shall direct the payment to each participant in the
proceeding of the reasonable disbursements made or incurred
by him in the course of the proceeding, and shall make such
reasonable allowances, as to the court seem proper, to
persons who have served in the proceeding as referee,
guardian ad litem, or counsel; and shall direct the mode of
payment of all these allowances.
3. The order of confirmation shall also include such provisions
as justice may require for the application, safeguarding,
management and distribution of the fund to be derived from
the ordered transaction. The statutory provisions applicable
to the safeguarding, management or distribution of the fund
produced by a sale in an action for partition shall apply to
the proceeds derived from a sale authorized by this section,
so far as this is practical.
Sec. 1614. BINDING FORCE OF MORTGAGE, SALE OR LEASE DULY MADE
WITH JUDICIAL APPROVAL.
A mortgage, lease or conveyance duly executed and delivered in
accordance with an order of confirmation, made pursuant to the
provisions of section 1613, binds the interests of the applicant
therefor and of all other persons who either are parties to such
proceeding or are represented therein or are not entitled to
notice thereof under the provisions of section 1606.
Sec. 1615. DATE OF CREATION OF AFFECTED INTERESTS.
The procedure authorized by sections 1601 through 1614 shall
apply equally to interests created on or after September 1, 1937;
to interests created before that date but subsequent to the
enactment of some statute, replaced by former sections one
hundred seven through one hundred seven-m of the real property
law, authorizing the like sale, mortgage, lease or other binding
of such interests by a judicially authorized conveyance; and to
all other interests, whenever created.
Sec. 1616. APPLICATION TO COMPENSATION ARISING OUT OF
APPROPRIATION OF REAL PROPERTY BY THE STATE.
1. The procedure authorized by sections 1601 through 1614 as to
a sale of real property, covering all created interests as
mentioned therein and qualified in section 1615, shall, so
far as practicable, apply also to an application concerning
payment of compensation arising out of any appropriation by
the state of real property or of any interest therein, for
public purpose, in the same manner that such procedure would
apply, but for such appropriation, to an application
thereunder for an order directing that the real property in
question, or a part thereof, be sold.
2. For the purpose, however, of the relief sought under the
provisions of this section, all references in this and in
any of the above enumerated sections to a trustee or a trust
shall be construed as relating only to a trust estate
created by an instrument other than a will and under which
the trustee has no valid power of sale over the subject
property. Where, however, a valid power of sale is given the
trustee under such instrument, he is hereby authorized to
execute the transaction in the same manner a testamentary
trustee may do under section two hundred fifty-c of the
surrogate's court act, and which execution, including all
releases given thereunder by such nontestamentary trustee,
shall in similar scope be binding and conclusive on all
persons and interests as covered thereby in said last
3. In the case of any such appropriation where relief is sought
under this section, the relevant proof to be taken and the
hearing and examination to be had before final order under
the provisions of section 1609 shall be as to whether the
compensation offered by the state, or any agency or
department thereof, by way of a provisionally executed
agreement of adjustment or otherwise, for the total value of
such appropriated property or interest and of all legal
damages caused by such appropriation, represents the fair
market value of such property or interest and just
compensation therefor and for all legal damages caused by
such appropriation, including the damages, if any, sustained
by the entry upon, use or occupation of, or injury to, said
property by the state prior to completion of appropriation.
If the court is satisfied as to the adequacy of said offer,
it shall, in the final order in the proceeding, authorize
the applicant if acting as trustee, and, if not, then a
referee to be appointed thereunder to execute the authorized
transaction, to enter into or adopt any such agreement of
adjustment with, and in form submitted by, the state or any
agency or department thereof for the total compensation so
offered; and on report under oath to the court by such
trustee or referee of any such agreement of adjustment so
undertaken by either of them, if it appears to the court to
conform in all particulars to the final order authorizing
the transaction, an order shall be made approving and
confirming such agreement of adjustment and directing such
trustee or referee, upon consummation thereof, in behalf of
all persons in interest as to the property affected by said
appropriation, or as to the proceeds to be derived therefrom
in said transaction, who shall have become bound by said
proceeding under the provisions of section 1614 to execute
and deliver to the state and/or any agency or department
thereof, a release of all claims on the part of such persons
in interest with respect to the total compensation offered
as aforementioned, together with any and all other documents
and instruments which may be required by the state or any
agency or department thereof to give full effect to such
release, and which release and attendant documents and
instruments shall, upon such execution and delivery thereof,
become and remain binding and conclusive on all of the
aforesaid persons in interest.
4. Said order of confirmation shall, in the discretion of the
court, provide for payment out of said total compensation of
reasonable disbursements and of such allowances as to the
court may seem proper, in the manner and respectively to the
participants and persons mentioned in section 1613, and
shall also authorize said trustee or referee to receive the
net proceeds therefrom after such payment and to apply,
safeguard, manage and distribute said remaining fund as
directed in said order of confirmation and in accordance
with the relevant provisions of section 1613.
Sec. 1641. EXECUTORS', FIDUCIARIES' AND TRUSTEES' CONVEYANCES
TO CERTAIN CORPORATIONS IN EXCHANGE FOR CERTAIN
STOCKS AND BONDS AUTHORIZED AND REGULATED.
1. Whenever an executor, trustee, guardian of an infant,
committee of a person incompetent to manage himself or his
affairs, conservator of a person unable to care for his
affairs, or other person or persons acting in a fiduciary
capacity, or a life tenant, is authorized to sell any real
property or any interest therein pursuant to a power
contained in a deed or will, or pursuant to a judgment or
order of the supreme court in an action or special
proceeding pursuant to any provision of law, or pursuant to
a statutory power to sell or exchange any real property, or
any interest therein, or whenever a trustee of an express
trust is seized of a legal title to an undivided share or
interest in any real property, and the said property has
been or is about to be conveyed to a corporation formed or
to be formed for such purpose, and two-thirds in number and
amount of interest of the adult beneficiaries and also two-
thirds in number and amount of interest of the adult persons
having a vested interest or estate in possession, reversion
or remainder in such real property have agreed, or desire to
agree that their interests and estates shall be exchanged
for the stock and bonds or either the stock or bonds of such
corporation, then the said executor, trustee, guardian,
committee, conservator or other person or persons acting in
a fiduciary capacity, or the life tenant or tenants, may,
with the approval of the supreme court, convey such real
property or interest to such corporation in exchange for the
stock or bonds of such corporation, or a proportionate
amount thereof, provided, however, that such corporation
shall be prohibited by its certificate of incorporation from
investing in any stocks, bonds or other securities other
than real property which are not under the laws of this
state a proper subject for the investment of trust funds,
and provided further that if the interest of a trust estate
in any real property to be so exchanged is an undivided part
or share therein, such undivided part or share of the trust
estate may be so exchanged if it shall appear to the court
to be for the best interest of such estate.
2. The supreme court shall not grant an order permitting such
an exchange and conveyance unless it appears to the
satisfaction of such court that a written notice stating the
time and place of the application for such leave has been
served upon every beneficiary and also upon every person in
being having a vested interest or estate in possession,
reversion or remainder, in such real property at least eight
days before the making thereof, if such beneficiary or other
person is an adult within the state; or if a minor,
incompetent, conservatee, or absentee, until proof of the
service on such beneficiary or other person of such notice
as the court or a justice thereof prescribes.
3. The court shall appoint a guardian for any minor and for any
person unable to manage himself or his affairs who shall not
be represented by a committee or conservator duly appointed.
4. The application must be by petition duly verified, must be
made by the executor, trustee, guardian of an infant,
committee, conservator, or such other person or persons
acting in a fiduciary capacity, or a life tenant who has
been so authorized to sell or exchange, or by the trustee of
an express trust seized of a legal title to an undivided
share or interest in real property; and shall set forth the
reasons for such exchange and conveyance and the nature
thereof and the peculiar facts which make it proper that the
application shall be granted, but when the interest of a
trust estate in any real property is an undivided part or
share thereof, it shall be sufficient to show by such
petition that the exchange will be for the best interests of
such estate. After taking proof of the facts either before
the court or a referee, and hearing the parties and fully
examining into the matter, the court must direct judgment
upon the application. In case the application is granted,
the judgment must authorize the said executor, trustee,
guardian of an infant, committee, conservator, or other
person or persons acting in a fiduciary capacity or life
tenant, to make such exchange and conveyance upon such terms
and conditions as the court may therein prescribe.
5. Whenever it shall appear from the papers submitted upon the
application that there are conflicting claims in respect to
the ownership of or the right to sell and convey such real
property or any interest therein, the court may, within the
demand for relief as evidenced by the notice of application,
and if all adult beneficiaries, and also all adult persons
having a vested interest or estate in possession, reversion
or remainder in such real property under such conflicting
claims consent thereto, direct that the stock and bonds or
either the stock or bonds to be given by the corporation in
exchange for such real property or interest therein shall be
issued to and held by a trust company authorized to hold
moneys paid into court upon such terms and conditions and
with such powers as the court shall prescribe until the
further order of the court.
Sec. 1651. PROCEEDINGS FOR VOLUNTARY PARTITION OF INFANT'S,
INCOMPETENT'S OR CONSERVATEE'S REAL PROPERTY.
1. Where an infant, mentally retarded person, mentally ill
person, alcohol abuser or conservatee holds real property,
in joint tenancy or in common, the general guardian of the
infant, or the committee of the mentally retarded person,
mentally ill person, or alcohol abuser, or conservator of
the conservatee, may apply to the supreme court or to the
county court of the county wherein the real property is
situated, for authority to agree to a partition of the real
property. Where such application affects the interests of an
incompetent person or a conservatee who has been committed
to a state institution, and is an inmate thereof, notice of
such application must be given to the superintendent, acting
superintendent or state officer having special jurisdiction
over the institution where the incompetent person or
conservatee is confined. Irrespective of the location of any
real property held by an infant in joint tenancy or in
common, his general guardian may make such application to
the surrogate's court which appointed such guardian. A
certified copy of the decree entered in the surrogate's
court on such application must be recorded in the office of
the clerk of each county in which is situated property
affected by such decree.
2. Such an application must be by a petition, which must
describe the real property proposed to be partitioned; must
state the rights and interests of the several owners
thereof; must specify the particular partition proposed to
be made; and must be verified by affidavit. The court may
order notice of the application to be given to such persons
as it thinks proper.
3. If, after due inquiry into the merits of the application, by
a reference or otherwise, the court is of the opinion that
the interests of the infant, or of the mentally retarded
person, mentally ill person, alcohol abuser or conservatee,
will be promoted by the partition proposed, it may make an
order authorizing the petitioner to agree to the partition
proposed, and in the name of the infant, or of the mentally
retarded person, mentally ill person, alcohol abuser or
conservatee, to execute releases of his right and interest
in and to that part of the property which falls to the
shares of the other joint-tenants or tenants in common. The
court may, in its discretion, for the furtherance of the
interests of said infant, mentally retarded person, mentally
ill person, alcohol abuser or conservatee, direct partition
to be so made as to set off to him or them his or their
share in common with any of the other owners, provided the
consent in writing thereto of such owners shall be first
4. Releases so executed have the same validity and effect, as
if they were executed by the person in whose behalf they are
executed, and as if the infant was of full age, or the
mentally retarded person, mentally ill person, or alcohol
abuser was of sound mind, and competent to manage his
affairs, or the conservatee was competent to manage his