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LYNBROOK GARDENS, INC., Appellant and Respondent, v. BERNARD C. ULLMANN, Respondent and Appellant.

Action for specific performance of two contracts for the sale of parcels of real property. The parcels had been conveyed to the seller's grantor in accordance with a judgment of foreclosure, pursuant to title 3, article VII-A of the Tax Law (Cons. Laws, ch. 60). The constitutionality of that statute is attacked by the defendant on the ground that certain of its provisions are violative of the due process clauses of the Federal and State Constitutions. Cross-appeals by the parties. On appeal by the plaintiff from so much of an order as grants defendant's motion for judgment on the pleadings as to the second cause of action, and from so much of a judgment entered in accordance therewith, judgment and order, in so far as appealed from, unanimously affirmed, without costs. No opinion. On appeal by the defendant from so much of an order as denies defendant's motion for judgment on the pleadings as to the first cause of action and grants judgment of specific performance on that cause of action to plaintiff, and from so much of a judgment entered in accordance therewith, order and judgment, in so far as appealed from, unanimously affirmed, without costs. No opinion. Lazansky, P.J., Hagarty, Johnston and Taylor, JJ., concur. Carswell, J., concurs as to first cause of action, and likewise concurs as to invalidity of statute referred to in second cause of action, but as to latter deems that there is no aggrieved owner or suitor before the court entitled to have a ruling as to the constitutionality of that statute. No identified owner says his rights were cut off by action under the statute. There is no evidentiary or other showing that the rights of any unidentified owner were cut off. Hence the question is moot and these parties are seeking and getting an unauthorized advisory opinion. ( Headley v. City of Rochester, 272 N.Y. 197, 204; People ex rel. Durham R. Corp. v. La Fetra, 230 N.Y. 429, 440; Arkansas Oil Co. v. Louisiana, 304 U.S. 197; Voeller v. Neilston Co., 311 U.S. 531, 537.) [ 179 Misc. Rep. 132.]

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LYNBROOK GARDENS, INC. v. ULLMANN
(Nov 2, 1942)