Wagner v. Volkian Realty Corp.

Section 1279 of the Code of Civil Procedure provides that “ The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts, upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action, brought for the same cause.” . A condition precedent to a valid submission is that the question in difference might be the subject of an action. The question submitted to this court is not the subject of an action and can be properly raised only upon a motion in the action for partition pending in the Supreme Court. (Crane v. Robinson, 19 Misc. Rep. 40; Miller v. Collyer, 36 Barb. 250.) The proceeding is, therefore, dismissed, without costs, and without prejudice to an application for the same relief, to be made by motion in the court where the action for partition is pending. Jenks, P. J., Thomas, Rich, Putnam and Blackmar, JJ., concurred.