Farrell v. Farrell , 206 A.D. 365 ( 1923 )

Per Curiam:

The order should be affirmed. Distribution of the fund on deposit, resulting from the sale of decedent’s property in the action to admeasure the widow’s dower must be made by the Supreme Court (Real Prop. Law, § 490, as added by Laws of 1920, chap. 930; Matter of Murphy, 197 App. Div. 139; affd., 232 N. Y. 547), but the petitioner to obtain an order of the Supreme Court granting distribution in her favor must, under section 1046 et seq. of the Civil Practice Act, produce an order or decree of the Surrogate’s Court made upon an application to sell decedent’s real estate under section 236 et seq. of the Surrogate’s Court Act as a basis for the order of the Supreme Court. (Matter of Dusenbury, 34 Misc. Rep. 666; Lichtenberg v. Lichtenberg, 156 App. Div. 532.) Sections 1047 and 1048 of the Civil Practice Act are a substantial re-enactment of the provisions of section 1538 of the Code of Civil Procedure under which the cases cited were decided, so far as the question involved here is concerned. The petitioner has obtained no such order or decree, and in fact has made no application under section 236 et seq. of the Surrogate’s Court Act, and her motion was, therefore, properly denied.

All concur.

Order affirmed, with ten dollars costs and disbursements.