In re the Application for the Sale of the Real Property of Adderley

Spencer, J. This proceeding, as its title imports, is an application for authority to sell the real estate of infants under the provisions of section 2348 of the Code of Civil Procedure. It appears that the .infants and three other persons are tenants in common of five separate parcels of real estate; and it is intended, by this proceeding, to effect an exchange of the interests of the infants in four of the parcels to the other tenants in consideration that such other tenants convey to the infants their interests in the one parcel, thereby effecting a partial partition of the parcels among the several owners. ¡No doubt such an exchange of interests would be beneficial to all the parties and avoid the expense of a partition action, but the statute by its terms does not authorize such a transaction. This court has no inherent jurisdiction ever the real estate of infants. Its authority rests solely upon the statute. The statute must be strictly construed. In Moran v. James, 20 Misc. Rep. 235, 21 App. Div. 183, [190] an exchange of property was held to be unauthorized by the statute. I am unable to distinguish that case from the present. Certainly, the reasons there given for the holding that an exchange of property is invalid, as not authorized by the statute, has equal application to the transaction here contemplated. The application, therefore, is denied. The petitioner, if so advised, may take an order sending the proceedings back to the referee for a further examination and hearing, or enter an order discontinuing the proceedings. Ordered accordingly.