New York § 1121 - 1121Commission to be issued if life tenant is without the state

§ 1121. 1121Commission to be issued if life tenant is without the state

§ 1121. Commission to be issued if life tenant is without the state. If before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party upon whom the petition and notice are served presents to the court presumptive proof, by affidavit, that the person whose death was in question is, or lately was, at a place certain without the state, the court must make an order requiring the petitioner to take out a commission, directed to one or more persons residing at or near that place, either designated in the order or to be appointed upon a subsequent application for the commission, for the purpose of obtaining a view of the person whose death is in question and of taking such testimony respecting his identity as the parties produce. The order must also direct that the proceedings upon the petition be stayed until the return of the commission and that the petition be dismissed, with costs, unless the petitioner takes out the commission within a time specified in the order, and diligently procures it to be executed and returned at his own expense.