mm UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY mmi^i*f*^ m ASSOGIRTIOII t SRH Fl^RHGisco ■-m^ PRACTICE SPECIAL ACTIONS COURTS OF RECORD STATK OK NEW YORK, UNDER THE CODE OF CIVIL PROCEDURE AND STATUTES, WITH FORMS. BY J. NEWTON FIERO, DEAN OF THE ALBANV LAW SCHOOL. IN TWO VOLUMES. VOL. I. SECOND EDITION. ALBANY, N. Y. : MATTHEW BENDER PUBLISHER. 1897. Entered according to act of Congress, in the year one thousand eight hundred and eighty-eight, By MATTHEW BENDER, In the office of the Librarian of Congress, at Washington. Entered according to act of Congress, in the year one thousand eight hundred and ninety-seven, By MATTHEW BENDER, In the office of the Librarian of Congress, at Washington. WEED-PARSONS PRINTING COMPANY, PRINTERS AND ELECTROTYPERS, ALBANY, N. Y. T TO ALTON B. PARKER, SAMUEL EDWARDS, EDGAR L. FURSMAN, D. CADY HERRICK, ALDEN CHESTER, EMORY A. CHASE, JUSTICES OF THE SUPREME COURT FOR THE THIRD JUDICIAL DISTRICT THIS WORK IS DEDICATED IN RECOGNITION ALIKE OF THEIR STANDING AND ATTAINMENTS WHEN AT THE BAR, AND THEIR COURTESY AND ABILITY UPON THE BENCH BY THE AUTHOR >v>va^^\ PREFACE TO SECOND EDITION. The fact that something more than eight years have elapsed since the pubUcation of this work would not alone justify a second edition, but for the many changes in that portion of the Code of which it treats, and the exceedingly large number of de- cisions construing or referring to those sections. In view of these considerations, together with the increasing frequency with which this class of actions is brought, more par- ticularly those relating to corporations and involving receiver- ships, a new edition seems to be both timely and desirable. In the preparation of the work, an effort has been made to remedy the defects and omissions in the first edition. To this end an analytical table of contents has been prepared which is calculated to greatly facilitate reference to any desired topic. Its use is recommended as more convenient than the index, by reason of its smaller bulk and reference to the articles and subdi- visions, as well as Code sections, as being quite as likely as the index to assist in turning to the subject desired. The index has been entirely re-written and much improved in substance and arrangement. The sections of the Code, statutes, decisions and forms are all indexed under the title to which they appertain, as under the head Ejectment, Partition, Divorce, Receiver, Mechanic's Liens and the like. In addition, there is a full index to the sections of the Code and also to the precedents, under those titles, again giving the page where any section or any precedent is to be found. There are also numerous cross references as to "Parties," "Pleadings," "Trial," "Judgment," etc. The more important change, however, is in the plan of the work by which it is broken up into articles and subdivisions, under which are grouped the Code, statutes, authorities and pre- [v] vi I'REFACE TO SECOND EDITION. cedents relevant to each topic. This has involved a re-arrange- ment of the Code provisions, which are apparently thrown into that statute without any regard to logical sequence or chronolog- ical order of procedure. In this respect there is a departure from the arrangement in the first edition, where it was attempted to follow the order of sections as they stand and give the decisions under each. An effort has now been made, in the treatment of each subject, to so group and arrange the separate provisions as to bring under a single head those matters logically connected with each other. The inconvenience arising from the original arrangement as it stands in the Code, is illustrated by the fact that the first two sections in Ejectment provide as to what judg- ment may be recovered in the action, the succeeding sections restrict the action within certain limits and state when it can- not be maintained, while the two following sections provide for the cases, so far as the title treats at all of that subject, when the action can be maintained, and the character of the judgment to be recovered is again provided for by the very last section of the topic. A like condition of things exists under Foreclosure, where the first section treats of final judgment, followed by regulations as to parties, pleadings and other matters relative to the com- mencement and progress of the action. In Partition apparently no attempt was made at orderly arrangement, and the confusion resulting is intolerable. The same is true to a marked degree of the statutes relating to Mechanic's Liens. These are, however, only illustrations of the inconvenient and illogical arrangement. It is, therefore, impossible to treat the subject fully or with any degree of clearness, without re-arrangmg the provisions in such a manner as to bring together those relating to the same subject- matter. In these, as in all cases of procedure, the logical order seems to be the chronological one, that is to say, the order of time in which matters of procedure naturally follow each other. In accordance with this view, the sections have been treated, so far as possible, in such a way as to first discuss when the action can be main- tained, followed by a statement of when it will not lie, what is PREFACE TO SECOND EDITION. Vli necessary to entitle plaintiff to recover, when and where the action can be brought, with consideration of the proper and necessary parties. The pleadings, matters of defence, evidence upon the trial, together with other matters of practice, including costs, follow ; the judgment and its effect is then considered, followed by discussion of any questions which may arise in con- nection with or after Judgment. It is believed that this method of treatment will do much toward rendering the Code more intelligible and greatly facilitate the work of the practitioner. It is simply correcting, so far as possible, the failure to properly perform their work by the revisers. The condition of the statutes is, in some instances, in spite of such re-arrangement, such as to render it impossible to treat the subject satisfactorily, since the law has come, by careless drafting and illy considered amendments, to a state of inextricable con- fusion. This is notably true as to the regulations relative to corporations and receivers. The citations include volumes i lo to 151 New York, 50 to 92 Hun, 8 volumes Appellate Division and i to 17 Miscellaneous. Special attention has been given to the citation of other than the official reports, viz. : 20 to 70 State Reporter, 3 to 40 Supplement, 15 to 24 Civil Procedure Reports, 22 to 31 Abbott's New Cases, in all something over two hundred volumes of reports. The author regrets the necessity for expanding the work into two volumes, but it has been impossible to do otherwise and give the practice so fully as is desirable in a work undertaking to treat the subject with any degree of fullness or accuracy, as is evident from the number of decisions necessarily cited. The fault lies in the volume of legislation and the mass of judicial decision, the remedy for which has not yet been discovered, or if found has not been applied. Albany, February ist, 1897. J. NEWTON FIERO. ANALYTICAL TABLE OF CONTENTS. CHAPTER HEADINGS. Chapter. page. 1. Ejectment i 2. Partition 102 3. Dower 278 4. Foreclosure 337 5. Action to compel determination of a claim to real property 486 6. Waste 499 7. Nuisance 5^3 8. Action by reversioners and joint tenants 571 9. Action for cutting trees or timber and when treble dam- ages allowed 577 10. Notice of pendency of action 5^5 11. Judgment for and sale of real estate 601 12. Miscellaneous provisions relating to real estate actions . . 660 13. Mechanic's lien 664 14. Replevin 737 15. Action to foreclose a lien upon a chattel 826 16. Action to annul a void or voidable marriage 836 17. Divorce 856 18. Action for separation 9H 19. Provisions applicable to nullity, divorce and separation . . 937 20. Receivers 9^9 21. Actions relating to corporation 1087 22. Action by or against an executor or administrator 1188 23. Action by a creditor against his debtor's next of kin, lega- tee, heir or devisee 1 247 24. Action to establish or impeach a will 1265 25. General and miscellaneous provisions relating to estates, 1282 26. Judgment creditor's action 1284 27. Action by private person upon an official bond 1358 28. Action by a private person for a penalty or forfeiture 1369 29. Certain actions to recover damages for wrongs i377 30. Miscellaneous actions and rights of action 1403 [ix] X ANALYTICAL TABLE OF CONTENTS. Chapter. page. 31. Action by or against an unincorporated association 1431 32. Actions by or against certain county, town and municipal officers 1441 2^. Actions and rights of action by and between joint debtors 1472 34. Action against usurper of an office or franchise 1487 35. Miscellaneous actions on behalf of the people 1507 CHAPTER I. EJECTMENT. Article. page. I. Nature and purpose of the action 2 II. When the action can be maintained 4 III. When the action will not lie 9 Subd. I. Mortgagee cannot maintain ejectment 9 § 1498. Mortgagee cannot maintain action 9 Subd. 2. Action cannot be maintained for dower 10 § 1499. Action cannot be maintained for dower. 10 Subd. 3. When action cannot be maintained 10 IV. By whom the action can be maintained 13 Subd. I. One or more joint tenants 13 g 1500. Separate action by joint tenant or tenant in common 13 Subd. 2. Grantee of lands held adversely 15 § 1501. Grantee of lands held adversely may maintain action 15 Subd. 3. Persons vested with right to immediate pos- session 18 Subd. 4. Reversioner may bring action after tenant's default 22 § 1680. Reversioner, etc., may bring action after tenant's default 22 V. What is necessary to entitle plaintiff to recover 22 Subd. I. Plaintiff must recover on the strength of his own title 22 Subd. 2. When possession gives presumption of title.. 24 VI. Who may be defendants and who must be joined as such 26 § 1502. Against whom action to be brought .... 26 §1503. Who may be joined as defendants 27 VII. Production of authority by attorney. . , 31 § 1512. Motion for plaintiff's attorney to produce his authority 31 ANALYTICAL TABLE OF CONTENTS. XI Article. page. VII. Production of authority by attorney 31 §1513. Order thereupon 31 § 1514. Evidence of authority 32 VIII. The complaint 33 §1511. Property claimed in action; how de- scribed in complaint 33 IX. Defences legal and equitable, and how pleaded 43 Subd. I. Defences generally 43 Subd. 2. Adverse possession as a defence 46 Subd. 3. Equitable defences 55 Subd. 4. Defences how pleaded 57 X. What rents and profits are recoverable and receiver- ship 63 Subd. I. What damages can be recovered 63 § 1496. Plaintiff may recover damages with the land 63 § 1497. Rents and profits to be included in damages 63 § 1531. Damages recoverable; set-off by de- fendant 63 Subd. 2. When receiver appointed 70 XI. Right to recover against occupants separately 70 § 15 16. Rule when there are distinct occupants, 70 §1517. The last section qualified 71 § 1518. When plaintiff may recover against one defendant subject to rights of others, 72 XII. When action will be severed 72 §1521. Abatement of action 72 § 1522. Action to be divided, when different persons succeed to different parcels. . 72 § 1523. Id.; when different persons succeed to real property and to rents and profits, 72 XIII. Evidence 73 Subd. I . When ouster to be proved 73 § 1515. When ouster to be proved 73 Subd. 2. What evidence is necessary and proper in ejectment , 75 XIV. Verdict 78 § 1519. Verdict, etc., to state nature of plaintiff's estate 7^ § 1520. Expiration of plaintiff's title before trial, 78 XV. New trial and its effect and evidence thereon 80 § 1525. New trial may be granted 80 xii ANALYTICAL TABLE OF CONTENTS. Article. page. XV. New trial and its effect and evidence thereon 80 §1526. Effect of judgment by default, etc 81 § 1527. Id. ; exception in cases of disability. ... 81 § 1528. The last three sections qualified 81 § 1530. Evidence on new trial 81 XVI. Effect of judgment 87 § 1529. Possession not to be changed by vaca- ting of judgment. . 87 § 1524. Eflfect of judgment rendered after trial of issue of fact 87 XVII. Costs in ejectment 9° XVIII, Execution in ejectment 92 XIX. Ejectment for non-payment of rent and procedure thereon 95 § 1504. When action may be brought for non- payment of rent 95 § 1505. Id.; when right of re-entry is reserved for want of distress 95 § 1506. Action against tenant, when proceedings to be stayed 95 §1507. Id.; amount of rent in arrear to be stated in judgment 95 § 1508. Id.; when possession to be restored to defendant 95 § 1509. The same 96 §1510. Id.; use of property, when set off against rent 96 CHAPTER II. PARTITION. Article. page. I. Nature of action and jurisdiction of the courts 104 Subd. I. Character of the action 104 Subd. 2. Jurisdiction of the courts 105 II. Partition by parol and by agreement 106 Subd. I. Partition by parol 106 Subd. 2. Partition by agreement 107 § 1590. Partition by guardian of infant, com- mittee of lunatic, etc 107 § 1591. Contents of petition 107 § 1592. Court may authorize partition ... 107 §1593. Effect of releases 108 ANALYTICAL TABLE OF CONTENTS. XUl PAGE. Ataxic le III. When action may be brought and by whom io8 Subd. I. When action may be brought by joint ten- ants or tenants in common • io8 8 ic;^2 When action for partition may be 108 brought ^°^ Rule 65. Partition, to embrace all lands held in common ; infants • • • ^°^ Subd. 2. When remainderman can maintain the action, 117 § 1533. Id. ; by remainderman 1 1? Subd.' 3. When heir may maintain action 120 8 1537. When heir may maintain action for par- tition of devised property 120 IV Restrictions and regulations as to partition by an . r ^ 122 mfant Subd. I. Authority necessary from the Surrogate s ^ . 122 Court . § 1534. Id.; by an infant 122 Subd. 2. Guardian a^//V^;;/, in partition 124 I 1535. Guardian ad litem, how appointed 124 Subd.' 3. Security required from guardian ad litem 131 § 1536. Security • • ^^i V. Necessary and proper parties in partition i33 Subd. I. Who are necessary and proper parties i33 j § 1538. Who must be parties ^33 § 1539. Who may be made parties i34 § 1594. When the State is interested i35 1 Subd '2. Supplemental summons in case of death of \ . 142 } party ^ § 1588. Proceedings on death of parties 142 Subd. 3. Creditors having liens on undivided shares as parties ^^^ § 1540. Id. ; as to persons having liens i45 ■ VI. Complaint to state interests of parties 146 ' § 1542. Complaint to state interests of parties. . 146 VII. Matters of practice • Subd I Notice, object of action and order of publi- 162 cation § 1541. Provision where a party is unknown 162 Subd. 2. Defences, how pleaded and effect 166 Subd. 3. Miscellaneous matters of procedure 167 Subd. 4. Appeals ^'^^ . . . 173 VIII. Receiver xiv ANALYTICAL TABLE OF CONTENTS. Article. page. IX. What questions may be tried in the action and in what manner 174 Subd. I. Title of parties may be tried 174 § 1543. Title of parties may be tried 174 Subd. 2. Issues of fact triable by jury. 178 § 1544. Issues of fact triable by jury 178 X. Reference as to title and as to creditors ... 179 Subd. I. Reference as to title 179 §1545. When title to be ascertained by the court, 179 Rule 66. Reference as to title 180 Subd. 2. Reference as to creditors 190 § 1561. Reference to inquire as to creditors. . . . 190 § 1562. Duty of referee 190 XI. Interlocutory judgment 194 Subd. I. Judgment for sale or for actual partition . . . 194 § 1546. Interlocutory judgment 194 Subd. 2. Special provisions in judgment 199 § 1563. Money to be paid into court 199 § 1572. Unknown owners 199 §1573. Sale; terms of credit thereupon 199 § 1574. Credit ; how secured 199 § 1575. Separate securities 199 XII. Dower interest and how affected by sale 212 § 1567. Sale of dower interest 212 § 1568. Purchaser to hold the property free there- from 212 § 1569. Gross sum to be paid to or invested for tenant in dower, etc 212 § 1570. Interests of owners of future estates to be protected. ...... . 213 §1571. Married woman may release her interest, 213 Rule 70. Gross sum in payment of life estate, how ascertained 214 Rule 68. Payment of money into court; designa- tion of trust companies, etc 219 Rule 180. (Chancery) Investment of funds paid into court 220 XIII. Sale, report of sale and confirmation, re-sale 220 Subd. I. Report of sale and confirmation 220 § 1576. Report of sale 220 Subd. 2. Purchaser when compelled to take title .... 225 XIV. Final judgment, its contents and effect 230 Subd. I. Contents of final judgment 230 ANALYTICAL TABLE OF CONTENTS. XV Article. page. XIV. Final judgment, its contents and effect 230 § 1577. Final judgment, effect thereof 230 § 1578. Id.; effect thereof upon incumbrancers, 231 § 1582. Shares of unknown and absent owners. . 231 §1583. Id.; of tenants of particular estates. .. . 233 § 1584. Court may require security to refund. . . 233 § 1585. Security to be taken in name of county treasurer 233 § 1586. Action thereupon 233 § 1595. Exemplified copy of judgment may be recorded 233 Subd. 2. Distribution of proceeds of sale 242 § 1580. Distribution of proceeds 242 § 1581. Shares of infants 242 Subd. 3. Rents may be adjusted 250 § 1589. Rents, etc., may be adjusted 250 Subd. 4. Costs 252 § 1579. Costs and expenses; how paid 252 XV. Application for moneys paid into court 255 § 1564. Application for money 255 §1565. Payment of incumbrances 255 §1566. Other parties not to be delayed 255 Rule 69. Order for payment out of court, what to specify, etc 255 XVI. Actual partition 257 Subd. I. Partial partition, when made . . 257 § 1547. Partial partition, when made 257 § 1548, Shares may be set off in common 258 Subd. 2. Interlocutory judgment for actual partition; powers and duties of commissioners 258 §1549. Appointment of commissioners 258 § 1550. Commissioners to be sworn, etc 258 §1551. Id. ; when to make partition 258 § 1552. Partition, how made 259 § 1553. Provision where there is a particular estate 259 Subd. 3. Report of commissioners and confirmation of report 265 § 1554. Report of commissioners 265 § 1555. Fees and expenses 266 § 1556. Confirming or setting aside report 266 Subd. 4. Final judgment for actual partition 269 § 1557. Final judgment on report; effect thereof, 269 xvi ANALYTICAL TABLE OF CONTENTS. Article. page. XVI. Actual partition 257 § 1558- Judgment must direct delivery of pos- session 269 §1559. Costs, how awarded; id.; against un- known parties 269 § 1560. Sale of property, when directed 270 Subd. 5. Compensation for equality of partition .... 273 § 1587. Compensation to equalize partition 273 CHAPTER III. DOWER. Article. page. I. The right of dower 279 Subd. I. Origin and nature of dower 279 Subd. 2. When and in what lands widow entitled to dower 283 L. 1896, Chap. 547: § 170. Dower 283 § 183. Effect of acts of husband 283 Subd. 3. Dower not allowed in lands exchanged or mortgaged for purchase money 289 L. 1896, Chap. 547: § 171. Dower in lands exchanged 289 § 172. Dower in lands mortgaged before mar- riage 289 § 173. Dower in lands mortgaged for purchase- money 289 § 174. Surplus proceeds of sale under purchase money mortgages 289 § 175- W'idow of mortgagee not endowed 289 Subd. 4. Pecuniary provision in lieu of dower and election 292 L. 1896, Chap. 547: § 177. When dower barred by jointure 292 § 178. When dower barred by pecuniary pro- visions o 292 § 179. When widow to elect between jointure and dower 292 § 180. Election between devise and dower 292 §181. When deemed to have elected 29^ Subd. 5. How dower is released or barred 299 § 1604. Action barred by assignment of dower, . . 299 I ANALYTICAL TABLE OF CONTENTS. XVU Article. page. I. The right of dower 279 L. 1896, Chap. 547: § 186. Divorced woman may release dower 299 § 187. Married woman may release dower by attorney 3°° Subd. 6. How dower affected by divorce 306 L. 1896, Chap. 547: § 176. When dower barred by misconduct 306 § 182. When provision in lieu of dower is forfeited 306 Subd. 7. Right of widow to quarantine and crops 308 L. 1896, Chap. 547: § 184. Widow's quarantine 3°^ § 185. Widow may bequeath a crop 308 II. Limitation of the action by lapse of time 308 §1596. Limitation of action for dower 308 III. The remedy and parties to the action 31° § 1597- Against whom action to be brought 310 § 1598. Who may be joined as defendants 31° § 1599. Id. ; where defendants claim in severalty, 310 IV. Pleadings and miscellaneous matters of practice 311 § 1605. Collusive recovery not to prejudice in- fants 311 8 1606. Complaint 3^1 § 1616. Appeal not to stay execution, if under- taking is given 311 § 1625. Certain provisions of article second made applicable 3^2 V. Interlocutory judgment for admeasurement of dower, 319 § 1607. Interlocutory judgment for admeasure- ment 319 VI. Commissioners, their powers, duties and report 322 § 1608. Oath of commissioners, etc., removal, filling vacancy 3-2 §1609. Dower, how admeasured 322 § 1610. Report thereupon 323 § 161 1. Setting aside report 323 §1612. Fees and expenses 323 VII. What damages may be recovered in the action ' 328 § 1600. Damages may be recovered, how esti- mated 328 § 1601. Id. ; in action against alienee of husband, 328 § 1602. Id. ; where several parcels, etc. 329 § 1603. Id. ; against heirs, etc., aliening land. . . 329 xviii ANALYTICAL TABLE OF CONTENTS. Article. page. VIII. Agreement to accept gross sum and proceedings thereon 33i § 1617. Plaintiff may consent to receive a gross sum 331 § 16 r8. Defendant may consent to pay it; pro- ceedings thereupon 331 § 16 1 9. Interlocutory judgment for sale 331 § 1620. Id. ; directing a part to be laid off 331 § 1621. Liens to be ascertained 332 §1622. Id.; payment of or sale subject to 332 § 1623. Report of sale 332 § 1624. Final judgment thereon 332 Rule 70. Gross sum in payment of life estate, how ascertained 333 IX. Final judgment and its effect 334 § 1613. Final judgment 334 § 16 14. Plaintiff may recover sum awarded; court may modify judgment 334 8 1615. Junior incumbrancers not affected, by admeasurement 334 CHAPTER IV. FORECLOSURE. Article. page. I. Nature of the action and courts having jurisdiction . 337 Subd. I. Character of the action 338 Subd. 2. Strict foreclosure 339 Subd. 3. Courts having jurisdiction and place of trial, 341 II. Parties plaintiff and defendant 342 Subd. I. Parties plaintiff 342 Subd. 2. Necessary and proper parties defendant.... 345 t< 1627. Persons liable for mortgage debt may be made defendant etc 345 Subd. 3. Prior lienors not proper parties 354 III. Complaint and notice of pendency of action 356 Subd. I. Complaint 356 § 1629. Complaint to state whether such action brought 356 Subd. 2. Notice of pendency of action 359 § 1631. Notice of pendency of action to be filed. 359 IV. Answer and defences 359 Subd. I. Answer generally 359 ANALYTICAL TABLE OF CONTENTS. XIX Article. page. IV. Answer and defences 359 Subd. 2. Counterclaim 368 Subd. 3. Tender as a defence 369 Subd. 4. Demurrer 371 Subd. 5. Relief granted defendants 372 V. Matters of practice 373 Subd. r. Service personal and by publication 373 Subd. 2. Notice of no personal claim 374 Subd. 3. Guardian ad litem for infant defendant 375 Subd. 4. Miscellaneous rules and regulations 377 Subd. 5. No other action to be brought without leave of the court 390 § 1628. Other actions for mortgage debt, when prohibited 390 § 1630. If judgment rendered therein, execution must be returned 390 Subd. 6. Receiver when appointed, powers and duties, 395 Subd. 7. Costs 401 VI. Reference to compute amount due 403 Subd. I. Order of reference 403 Rule 60. Failure to answer on mortgage foreclosure, reference, judgment on 403 Rule 79. Referee, who may be 404 Subd. 2. Duties and report of referee 407 VII. Judgment, the character and extent of relief 411 Subd. I. Judgment, the character and extent of relief granted 411 § 1626. Final judgment, what to contain 411 Rule 61. Form of judgment for sale, disposition of surplus money, etc 411 Subd. 2. Effect of final judgment and conveyance.... 421 § 1632. Effect of conveyance upon sale 421 Subd. 3. Motion to vacate judgment and appeal 428 VIII. Sale and manner in which it is conducted 430 Rule 63. Mortgage and assignments to be filed or recorded before conveyance; expense al- lowed in costs 430 IX. Judgment for deficiency 430 X. Proceedings when mortgagee's debt not all due 441 § 1634. When complaint to be dismissed on judg- ment of sum due 441 § 1635. Payment after judgment; when proceed- ings stayed 441 XX ANALYTICAL TABLE OF CONTENTS. Article. page. X. Proceedings when mortgagee's debt not all due 441 §1636. When part only of the property to be sold, 441 § 1637. When the whole property may be sold.. 441 XI. Surplus proceedings 445 Subd. I. Rights of parties to surplus 445 § 1633. Disposition of proceeds 445 Subd. 2. Method of distributing surplus 455 Rule 64. Application for surplus moneys, reference, searches, unsatisfied liens 455 Subd. 3. Costs and appeal from order in surplus pro- ceedings 466 XII. Precedents for foreclosure of mortgage given to se- cure bonds 467 CHAPTER V. DETERMINATION OF A CLAIM TO REAL PROPERTY, ACTION TO COMPEL. Article. page. I. Nature and object of action 486 II, When action maintained and what must be alleged. . 487 § 1638. Who may maintain action 487 § 1639. Complaint 487 § 1650. This article applies to corporations 488 III. Proceedings after issue joined 493 § 1640. Proceedings when defendant denies plaintiff's title 493 § 1641. Id. ; when he pleads title 493 § 1642. Proceedings the same as in ejectment .. 493 § 1643. Proceedings when defendant claims in reversion or remainder 494 IV. Judgment and its effect 495 § 1644. Judgment awarding defendant posses- sion, etc 495 § 1645. Judgment for plaintiff 496 § 1646. Effect of judgment 496 V. Proceedings when against woman claiming dower. . . 497 § 1647. Action to determine widow's dower.,.. 497 § 1648. Proceedings, if plaintiff admits defend- ant's claim 497 § 1649. Id.; when defendant's claim is denied.. 498 ANALYTICAL TABLE OF CONTENTS. XXI CHAPTER VI. WASTE. Article. ^^^^• I. What constitutes waste 499 II. By whom action maintained 5°3 I 1652. Action by heir, devisee or grantor of reversion 5°3 § 1653. Id. ; by ward against guardian 503 § 1654. Id. ; by grantee of real property sold under execution 5^3 § 1656. Action against joint tenant or tenant in common 5°3 III. Against whom action lies and defences 50? § 165 1. Who liable to action for waste 5°? IV. Injunction to restrain waste S°^ § 1681. Defendant, how prevented from commit- ting waste, etc 5°^ § 1442. Order to prevent waste, when and how applied for. S°9 V. Judgment 5ii § 1655. Judgment in action against tenant of particular estate 5^^ VI. Miscellaneous provisions as to waste S^^ §1657. Id.; interlocutory judgment for partition, 511 § 1658. Id.; damages to be deducted from de- fendant's share 5^2 § 1659. View, when not necessary, when and how made 5^2 CHAPTER Vn. NUISANCE. Article. ''^^^■ I. The nature of the statutory action 5^3 § 1663. Application of this article 5^3 II. When the action will lie 5^^ § 1660. When action may be brought 518 III. Who can maintain the action 53° IV. Defendants and defences 542 § 166 1 . Defendants therein 542 V. Pleadings and practice 54^ Subd. I. Pleadings 548 Subd. 2. Practice 557 xxii ANALYTICAL TABLE OF CONTENTS. Article. page. VI. Relief granted and measure of damages 560 §1662. Final judgment 560 VII. Injunction in action for nuisance 567 CHAPTER VIII. REVERSIONERS AND JOINT TENANTS, ACTION BY. Article. page. I. Actions against guardians or trustees holding over. . 571 § 1664. Certain persons holding over deemed trespassers. Action against them 571 II. Action by reversioner 571 § 1665. Reversioner, etc. may maintain action.. 571 III. When joint tenants may maintain action against each other 573 § 1666. Joint tenant, etc. may maintain action against his co-tenant 573 CHAPTER IX. CUTTING TREES OR TIMBER AND WHEN TREBLE DAMAGES ALLOWED. PAGE. § 1667. Action for cutting, etc., trees 577 § 1668. Id.; when treble damages may be re- covered 577 § 1669. Treble damages for forcible entry or detainer.. 577 § 1 184. How double, treble or increased dam- ages, found and awarded 579 Laws 1895, chap. 395, § 280. Actions for tres- passes upon forest preserve 583 CHAPTER X. PENDENCY OF ACTION, NOTICE OF. Article. page. I. Contents and filing of notice of pendency 5^5 Subd. I. Nature and office of lis pendens 5^5 § 1670. Notice of pendency of action by plaintiff, 585 Subd. 2. When lis pendens proper 5^6 ANALYTICAL TABLE OF CONTENTS. XXIU Article. page. I. Contents and filing of notice of pendency 585 Subd. 3. Contents of notice of pendency and amend- ments 58S Subd. 4. When and where Us pendens to be filed 589 § 1672. Notice to be recorded and indexed 589 Subd. 5. Lis pendens filed by defendant 590 § 1673. Notice of pendency of action by defend- ant 590 11. Effect of notice of pendency 59i § 1671. Effect of notice 59i §1685. Liabilityof purchaser, pending an action, 591 III. When notice of pendency canceled 59^ § 1674. When and how notice may be canceled.. 598 CHAPTER XI. JUDGMENT FOR AND SALE OF REAL ESTATE. Article. page, I. Judgment for sale, where to be entered 601 § 1677. Judgment to be entered in county where real property is situated 601 II. Sale, how advertised and conducted 601 Subd. I . The referee 602 Rule 79. Who may be referee 602 Rule 61. (Last sentence) Selection of referee 602 § 1243. Security upon sale by referee 602 Subd. 2. Advertising and conducting sale 603 § 1678. Sale, notice of, how conducted 603 § 1384. Sale on execution, etc.; when and how conducted 603 § 1434. Notice of sale of real property, how given 604 Rule 62. Sale of lands in the cities of New York, Brooklyn and Buffalo under judgment or order 604 Rule 67. Stay of sale in partition or foreclosure, notice 604 Subd. 3. Sale, when made in parcels 611 Subd. 4. Sale in the inverse order of alienation 616 Subd. 5. Trustees not to purchase 620 § 1679. Purchases by certain officers prohibited; penalty 620 xxiv ANALYTICAL TABLE OF CONTENTS. Article. page. III. Referee's fees and expenses and disposition of pro- ceeds 621 Subd. I. Referee's fees and expenses. 621 § 3297. Referee's fees upon sales of real prop- erty 621 § 3307. Subd. 9. Sheriff's fees on sale of real property 621 Subd. 2. Disposition of proceeds 624 § 1676. Upon sale of real property, ofificer to pay, taxes, etc 624 IV. Report of sale and order of confirmation 626 Rule 30. (Last half.) References other than of issues, etc 627 § 1244. Conveyance to state name of party 628 V. Resale, when ordered 632 VI. Rights of purchasers and when sale enforced 641 VII. Payment of moneys arising from sale into court and how paid out 648 Rule 180. (Chancery) Investment of funds paid into court 648 Rule 68. Payment of money into court; designation of trust company, etc 649 Rule 69. Order for payment out of court; what to specify, etc 649 VIII. Passing title and writ of assistance 650 § 1675. When and how court may compel delivery of possession of real property to pur- chaser 650 IX. Effect of judicial sale. 659 CHAPTER XII. REAL ESTATE ACTIONS, MISCELLANEOUS PROVISIONS RELATING TO. Article. page. I. Survey, when ordered 660 § 1682. When order for survey may be made . , 660 § 1683. Contents and service of order 660 § 1684. Authority of party under order 660 II. When infant may maintain action as to real estate in his own name 661 § 1686. Infant may maintain, etc. real action in his own name 661 ANALYTICAL TABLE OF CONTENTS. XXV Article. page. III. Joinder of actions and when special proceedings not allowed as to real estate 662 § 1687. Joinder of real actions with others 662 § 1688. When special proceedings to recover real property not allowed 662 IV. When heir can maintain ejectment after default by tenant for life 663 § 1680. Reversioner, etc., may bring action after tenant's default 663 CHAPTER XIII. MECHANIC'S LIENS. Article. page. I. Nature and extent of the remedy 664 II. By and against whom and in what cases lien acquired, 666 Laws 1885, chap. 342, § i. How and by whom lien acquired 666 Subd. I. By whom lien may be filed 667 Subd. 2. Against whom lien may be filed 669 Subd. 3. To what property lien attaches 674 Subd. 4. Miscellaneous provisions as to validity of liens, 676 III. Notice of lien and filing 678 Subd. I. Notice of lien and filing 678 Laws 1885, chap. 342, § 4. Notice of lien; filing and requisites of; notice upon owner, 678 Subd. 2. Verification of lien 682 IV. Priority of liens and rights of sub-contractors 684 Laws 1885, chap. 342: § 5. Priority of liens; building contracts . .. 684 § 20. Sub-contractors and priority among lien holders 685 V. Payments in advance and demand upon owner for terms of contract 690 Laws 1885, chap. 342: § 2. Payment by collusion, etc. to avoid liens, 690 § 3. Parties may demand terms of contract . 690 VI. Discharge of lien 691 Laws 1885, chap. 342, § 24. Discharge of lien, 691- VII. Construction of statute and repealing clause 694 Laws 1885, chap. 342: § 25. Construction of statutes 694 § 26. Repealing clause 694 XXVI ANALYTICAL TABLE OF CONTENTS. Article. page. VIII. Foreclosure of liens 695 Subd. I. When the action lies 695 Laws 1895, chap. 342, § 7. Action to enforce lien 695 Subd. 2. Limitation and continuance of lien, Us pen- dens 697 Laws 1885, chap. 342, § 6. Continuance of lien, 697 Subd. 3. Parties 699 Laws 1885, chap. 342, § 17. Parties to action, 699 Subd. 4. Pleadings 701 Subd. 5. Matters of practice 711 Laws 1885, chap. 342: § 8. Proceedings to enforce lien 711 § 14. Costs and disbursements 711 § 1 8. Consolidation of actions 711 § 19. Offer of payment 711 §21. Priority of liens, how determined 712 §22. Contract for payment in specific property 712 Subd. 6. Judgment 716 Laws 1885, chap. 342: § 15. Personal judgment 716 § 16. Transcript of judgment 717 § 23. Judgment for deficiency 717 Subd. 7. Foreclosure in courts not of record 722 Laws 1885, chap. 342: § 9 Jurisdiction; summons and complaint... 722 § 10. Service of summons by publication 722 §11. Procedure 722 § 12. Trial of issues 723 § 13. Appeals from such courts 723 IX. Liens against municipal property under contracts. . . 723 Laws 1892, chap. 629: § I. AVho may acquire lien; against what property lien to attach 723 § 2. Claim of lienor, contents, filing 724 § 3. Docketing lien 724 § 4. Duration of liens; lis petidens 724 § 5. Extent of lien 724 § 6. Enforcement and termination of lien. . . 724 § 7. Parties; priorities 724 § 8. Judgment; execution; appeal 725 § 9. Successive liens; priority according to date of filing 725 ANALYTICAL TABLE OF CONTENTS. XXVll Article. page. IX. Liens against municipal property under contracts. . . 723 § 10. Consolidation of action 725 § II. Costs in the discretion of the court 725 § 12. Rights to personal action not affected.. 725 § 13. How lien may be discharged 725 § 14. Term " contractor " defined 726 §15. When act to take effect; repealing clause, 726 § 16. Cases to which act shall apply 726 X. Liens on railroads, oil, gas or water wells and ceme- tery structures 734 Subd. I. Liens on railroads 734 Subd. 2. Liens against oil, gas or water wells 734 Subd. 3. Liens on grave-stones and monuments 734 CHAPTER XIV. REPLEVIN. Article. page. I. Nature of the action 738 II. The action when it lies, by and against whom 742 Subd. I. Title must be in plaintiff 742 Subd. 2. When and for what articles replevin lies 748 § 1692. When action maintained by an assignee, 748 Subd. 3. When action cannot be maintained 755 § 1690. When it cannot be maintained. 755 §1691. Id.; after judgment against the plaintiff, 755 Subd. 4. Against whom the action can be maintained, 759 Subd. 5. When demand or tender necessary 762 Subd. 6. Election of remedies 766 III. Pleadings and defences 766 Subd. I . The complaint 766 § 1720. Title, how stated in pleading 766 § 1721. Taking, etc.; how stated in complaint.. 767 Subd. 2. The answer and defences 773 § 1723. Answer of title in third person. . 773 § 1724. Answer that property was distrained doing damage 773 § 1725. Defendant may demand judgment for return 773 IV. Affidavit, undertaking and requisition to sheriff 777 Subd. I. The affidavit 777 § 1695. Affidavit therefor, before commence- ment of action 777 XXviii ANALYTICAL TABLE OF CONTENTS. Article. page. IV. Affidavit, undertaking and requisition to sheriff 777 § 1696. Id.; after commencement of action..,. 777 § 1697. Id.; Where several chattels are to be re- plevied 778 § 17 12. When agent, etc., may make affidavit for replevin 778 Subd. 2. The undertaking 781 § 1699. Plaintiff's undertaking for replevin 781 Subd. 3. Requisition 784 § 1694. Plaintiff may require sheriff to replevy.. 784 V. Duty of sheriff 785 Subd. I. How chattel to be replevied and kept 785 § 1698. Provision where a part only is replevied, 785 § 1700. How chattel to be replevied 785 § 1701. Id.; how taken from a building, etc.... 785 §1702. Replevied chattel; how kept, etc 785 Subd. 2. Delivery of chattel by sheriff 788 § 1706. When and to whom sheriff must deliver chattel 788 § 1707. Penalty for wrong delivery by sheriff. . . 788 § 1708. Undertaking; to whom delivered 789 Subd. 3. Sheriff to make return 790 §1715. Return, etc., by sheriff 790 § 1716. Id. ; how compelled 790 VI. Proceedings by defendant 790 § i7°3- When defendant may except to sureties; proceedings thereupon 790 § 1704. When defendant may reclaim chattel; proceedings thereupon 791 § 1705. Sureties, when and how to justify 791 VII. Claim of title by third person 794 § 1709. Claim of title by third person; proceed- ings thereupon . 794 § 1 7 10. Action against sheriff upon such claim. . 794 §1711. Indemnity to sheriff against such action, 795 VIII. Practice peculiar to replevin 797 Subd. I. Jurisdiction before summons served 797 § 1693. Jurisdiction, etc., when replevin pre- cedes summons 797 Subd. 2. Uniting causes of action and reviving action . 797 § 1689. Joinder of action with others 797 § 1736. Abatement and revival of action 797 ANALYTICAL TABLE OF CONTENTS. XXIX Article. page. VIII. Practice peculiar to replevin 797 Subd. 3. Replevin where order of arrest granted 798 § 17 14. Replevin where order of arrest has been granted 79^ Subd. 4. Subsequent replevin 799 § 17 13. Second and subsequent replevin; pro- ceedings thereupon 799 Subd. 5. Abandonment of claim to part of property by plaintiff 800 § 17 19. When and how plaintiff may abandon his claim as to part 800 Subd. 6. Action not affected though no replevin 800 § 17 18. Action not affected by failure to replevy, 800 Subd. 7. General matters of practice 800 IX. Evidence 804 X. Damages recoverable and form of verdict 808 § 1722. Damages when chattel injured, etc., by defendant 808 § 1726. Verdict, etc., what to state 808 § 1727. Substitute in certain cases for finding as to value 809 § 1728. Verdict, etc., for part of several chattels, j udgment thereupon 809 §1729. Damages, how ascertained on default. . , 809 XI. Contents of judgment 815 § 1717. Replevin papers to be made part of judg- ment-roll, etc 815 § 1730. Final judgment; docketing the same, . . 815 XII. Execution 818 §1731. Execution, contents thereof 818 § 1732. Id.; sheriff's power to take chattel 818 XIII. Action on undertaking, when maintainable 820 § 1733. Action on undertaking, when maintain- able 820 § 1734. Sheriff's return, evidence therein 820 § 1735. Injury, etc., no defence 820 XIV. Costs 823 CHAPTER XV. FORECLOSE A LIEN UPON A CHATTEL, ACTION TO. PAGE. § 1737- Action; when and in what courts main- tainable 826 XXX ANALYTICAL TABLE OF CONTENTS. PAGE. § 1738. Warrant to seize chattel; proceedings thereupon 826 § 1739- Judgment 826 § 1740. Action in inferior court 826 § 1741. Application of this article 826 CHAPTER XVI. VOID OR VOIDABLE MARRIAGE, ACTION TO ANNUL. Article. page. I. General provisions as to action 836 § 1742. Action by woman, married under six- teen, to annul marriage 836 § 1743. In what other cases marriage may be annulled 837 § 1755. How next friend of infant, lunatic, etc., allowed to sue, etc 837 Laws 1896, chap. 272: § 2. Incestuous and void marriages 837 § 3. Void marriages 837 § 4. Voidable marriages 838 II. Marriage annulled on ground of infancy 839 § 1744. Action when party was under the age of consent 839 III. When voidable, former husband or wife living 840 § 1745. Id. ; when former husband or wife living, 840 IV. When annulled for idiocy or lunacy 846 § 1746. Id. ; when party was an idiot 846 § 1747. Id. ; when party was a lunatic. . 846 § 1748. Action by next friend of idiot or lunatic, 846 § 1749. Issue; when entitled to succeed, etc ... 846 V. When voidable for force, duress or fraud 847 § 1750. Action on the ground of force, fraud, etc 847 § 1751. Custody, maintenance, etc., of issue of such a marriage 848 VI. Action on ground of physical incapacity 851 § 1752. Action on the ground of physical inca- pacity 85 1 VII. Order for jury trial and judgment, how obtained and effect of judgment 853 § ^753- Certain proceedings regulated in action to annul marriage 853 ANALYTICAL TABLE OF CONTENTS. XXXI Article. page. VII. Order for jury trial and judgment, how obtained and effect of judgment 853 § 1754- Judgment annulling a marriage; how far conclusive 853 Rule 73. Judgment by default, when granted, etc.... 853 CHAPTER XVII. DIVORCE. Article. page. I. When and how action maintained 856 § 1756. In what cases action maybe maintained, 856 § 1758. When divorce denied, although adultery proved 856 II. Complaint 861 Rule 72. (In part.) Complaint in divorce, averments in, 861 Rule 75. Questioning legitimacy of children 862 III. The issues and trial 865 Subd. I . Default 865 Rule 72. (Last part.) Failure of defendant to answer, 865 Subd. 2. Answer and framing issues 865 § 1757. Answer; mode of trial; judgment by default 865 Rule 74. Answer in action for divorce ; trial 865 Rule 31. (In part.) Settling of issues; motion for jury trial 869 § 969. What issues are triable by the court 869 § 970. Order for trial by jury of specific questions of fact, when of right 869 Subd. 3. Evidence 870 § 831. When husband and wife not competent witnesses; when competent 875 Subd. 4. Practice generally 884 Subd. 5. Trial 889 Subd. 6. Costs and appeal 892 IV. Judgment and its effect 893 Subd. I. Judgment, how obtained 893 § 1229. In matrimonial causes, judgment can be rendered only by the court 894 Subd. 2. Effect of judgment 902 § 1759. Regulations when action brought by wife 902 § 1760. Id.; when action brought by husband.. 903 xxxii ANALYTICAL TABLE OF CONTENTS. Article. page. IV. Judgment and its effect 893. Subd. 3. Vacating judgment 911 V. Re-marriage, when allowed 912 § 1761. Marriage after divorce for adultery 912 Laws 1879, chap. 321, § 49. When marriage al- lowed after divorce 912 CHAPTER XVIII. SEPARATION, ACTION FOR. Article. page. I. For what causes and in what cases action maintained, 914 Subd. I. Jurisdiction 914 § 1762. For what causes action may be main- tained 914 § 1763. Id. ; in what cases 914 Subd. 2. Cruelty and inhuman treatment 916 Subd. 3. Abandonment and failure to support 919 Subd. 4. Condonation 922 II. Pleadings and trial 923 Subd. I. Complaint 923 § 1764. Requisites of complaint 923 Subd. 2. Answer 927 § 1765. Defendant may set up plaintiff's miscon- duct 927 Subd. 3. Trial 927 Subd. 4. Evidence 928 III. Judgment, what to contain and when revoked 930 § 1766. Support, maintenance, etc., of wife and children 930 §1767. Judgment for separation may be revoked, 930 CHAPTER XIX. NULLITY, DIVORCE AND SEPARATION, PROVISIONS APPLICABLE TO. Article. page. I. Residence of married woman and jurisdiction of court 937 § 1768. Married woman deemed a resident in certain cases 937 ANALYTICAL TABLE OF CONTENTS. XXxiii . PAGE. Article II. Indorsement of process and proof of service 938 § 1774- Regulations respecting judgment by default 938 Rule 18. Service of summons by person other than sheriff, affidavit of, what to contain in divorce cases 939 III. Answer and counterclaim 94° § 1770. What is deemed a counterclaim 940 Rule 74. Answer; trial 94° IV. Judgment 944 Subd. I. How judgment to be taken by default 944 Rule 72. (In part.) Reference on default; proof of service of summons and complaint; failure of defendant to answer 944 Rule 76. Judgment not to be by default; copy plead- ings or testimony not to be furnished; no judgment to be entered except by court. . 944 Subd. 2. Judgment, how modified 945 V. Alimony and counsel fees _ 946 Subd. I. hXxmony pendente lite in actions for divorce or separation 946 § 1769. Alimony, expenses of action and costs; how awarded 946 Subd. 2. Alimony pendente lite in actions to annul a marriage 959 Subd. 3. Counsel fees 961 Subd 4 Practice on motion for alimony and counsel fees 96s Subd. 5. Alimony in final judgment 97° VI. Provisions for custody of children in judgment 972 § 177 1. Custody and maintenance of children, and support of plaintiff 972 VII. Judgment for alimony, how enforced 974 § 1772. Support, maintenance, etc., of wife and children 974 § 1773. Id.; when enforced by punishment for contempt 975 xxxiv ANALYTICAL TABLE (JF CONTENTS. CHAPTER XX. CORPORATION, ACTIONS RELATING TO. Article. page. I. Provisions relating to practice in actions by or against corporations 990 Subd. I. Complaint in actions by or against corpora- tions 990 § 1775- Complaint in actions by or against cor- porations 990 Subd. 2. When foreign corporation may sue and be sued 996 § 1779- When foreign corporation may sue 996 § 1780. When foreign corporation may be sued, 996 Subd. 3. Waiver of misnomer and proof of corporate existence 1009 § 1776. When proof of corporate existence un- necessary 1009 I 1777. Misnomer, when waived 1009 Subd. 4. Restrictions upon defence by corporation in suit on note 1012 § 1778. Action against a corporation upon a note, etc 1012 II. Judicial supervision of a corporation and of the offi- cers and members therof 1014 § 1781. Action against directors, etc., of a cor- poration for misconduct 1014 ^ 1782. By whom action to be brought 1015 § 1783. This article, how construed 1015 Subd. I. Action by attorney-general 1015 Subd. 2. Action by creditor, stockholder or trustee.. 1018 III. Action for dissolution of corporation and to enforce liability of officers and stockholders 1036 Subd. I. Action by judgment-creditor for sequestra- tion 1036 § 1784. Action by judgment-creditor for seques- tration, etc 1036 Subd. 2. Action to dissolve corporation 1043 §1796. Effect of this article limited 1043 §1785. Action to dissolve a corporation 1043 §1786. Id. ; by whom to be brought 1043 Subd. 3. Temporary injunction io54 §1787. Temporary injunction 1054 ANALYTICAL TABLE OF CONTENTS. XXXV Article. page. III. Action for dissolution of corporation and to enforce liability of officers and stockholders 1036 Subd. 4. Receiver 1056 § 1788. Receiver may be appointed; permanent and temporary receiver; powers, etc., of temporary receiver 1056 § 1789. Additional powers and duties may be conferred upon temporary receiver. . . 1056 Subd. 5. When action maintained against stockholders or officers 1056 §1790. Making stockholders, etc., parties 1056 § 1791- When separate action may be brought against them 1057 §1792. Proceedings in either action 1057 Subd. 6. Judgment and its provisions 1058 § 1793- Judgment; property of corporation to be distributed 1058 §1794. Id. ; stock subscriptions to be recovered, 1058 §1795. Id.; as to liabilities of directors and stockholders 1058 IV. Action to annul a corporation 1065 Subd. I. Action when and how brought and tried. . . . 1065 § 1797. Action by attorney-general, when legis- lature directs 1065 § 1798. Id. ; by leave of court 1065 § 1799. Leave; when and how granted 1066 § 1800. Action triable by jury 1066 Subd. 2. Judgment, injunction and receiver 1075 § 1801. Judgment ... 1075 § 1802. Injunction may issue 1075 § 1803. Copy of judgment-roll to be filed and published 1076 V. Provisions applicable to actions under this chapter. . 1076 Subd. I. Exceptions to operation of article 1076 § 1804. Certain corporations excepted from cer- tain articles of this title 1076 Subd. 2. When duty of attorney-general to bring action io77 § 1808. When attorney-general must bring action . , 1077 Subd. 3. Creditors may be brought in 1079 § 1807. Creditors may be brought in 1079 Subd. 4. Injunction and its requisites 1080 XXXvi ANALYTICAL TABLE OF CONTENTS. Article. page. V. Provisions applicable to actions under this chapter. . 1076 § 1806. Injunction staying actions by creditors, 1080 § 1809. Requisites of injunction against corpora- tions in certain cases 1080 Subd. 5. Miscellaneous practice regulations 1084 § 1805. Officers and agents may be compelled to testify 1084 § 181 1. Requisites of judicial suspension or re- moval of an officer 1084 § 1812. Application of the last three sections. . . 1084 § 1813. In action against stockholders, misno- mer, etc. not available 1085 Subd. 6. Receivers 1086 § 1810. Requisites of order appointing receiver in certain cases 1086 CHAPTER XXI. RECEIVERS OF CORPORATIONS. Article. page. I. Statutory provisions as to receivers of corporations, 1087 §1788. Receiver may be appointed. Permanent and temporary receiver; powers, etc., of temporary receiver 1088 § 1789. Additional powers and duties may be conferred upon temporary receiver. , . 1089 § 1 80 1. Judgment 1089 § 1810. Requisites of order appointing receiver in certain cases 1089 § 2423. Presentation of petition, etc. ; order. . . . 1090 § 2429. Final order 1091 § 2430. Certain sales, etc., void 1091 Revised Statutes, tit. 4, chap. 8, pt. 3: § 42. Receiver's general powers and du- ties 1158, 1091 §66. Receivers; security. 1128, 1092 § 67. Their rights , 1093 § 68. Their authority 1093 § 69. To prosecute for arrears of stock 1093 § 70. To give notice of appointment, etc 1093 §71. Certain sales and transfers void 1093 §72. Debtors to account to receivers 1093 ANALYTICAL TABLE OF CONTENTS. XXXvii Article. page. I. Statutor}- provisions as to receivers of corporations, 1087 § 73. Referring controversies 1093 § 74. Meetings of creditors to be called, etc., 1094 § 75. Subsisting contracts 1094 §76. Receiver's commissions 1094, 1156 § 77. Receivers to retain certain sums 1094 § 78. Receivers to meet suits 1094 § 79. Order of payment of debts 1094 § 80. Second and final dividend 1094 §81. Proceedings therein 1095 P 82. Debts not exhibited 1095 § 83. Surplus to stockholders 1095 § 84. Money retained 1095 § 85. Control of receivers 1095 § 86. Account by them 1095 § 87. Previous notice thereof 1095 § 88. Master's duty 1096 § 89. Settlement of its accounts; its effect. . . 1096 Revised Statutes, pt. 11, chap. 5, tit. i, art. 8: § I. Assignees, etc., trustees for benefit of creditors 1096 § 2. One trustee, etc 1096 § 3. Powers of trustees where more than one, 1096 § 4. Survivor; property in the hands of trustee dying 1097 § 5. Trustees to take oath 1097 § 6. Trustees vested with debtor's property, 1097 § 7. Their powers 1097 § 8. Notice to be given. . , 1098 § 9. Time and manner of publishing notice.. 1098 § 10. May sue notwithstanding notice 1098 § II. Persons concealing property or debts to forfeit double, etc 1098 § 12. When debtor, etc., may be brought up to be examined 1099 § 13. Particulars of examination i°99 § 14. Person refusing to be sworn, etc., to be committed 1099 § 15. Proceedings in case he brings habeas corpus i°99 § 16. Sheriff suffering such person to escape, how punished i°99 § 17. Persons answering not liable to penalty, iioo XXXviii ANALYTICAL TABLE OF CONTENTS. Article. page. 1. Statutory provisions as to receivers of corporations, 1087 § 18. Persons discovering effects entitled to premium 1 100 § 19. Controversies may be referred to re- ferees I lOO § 20. Notice of application for appointment of referees i lOo § 21. Referees to be nominated iioo § 22. Referee may issue commission 1 100 §23. Selection to be certified, and rule entered, iioo § 24. Powers, etc., of referees iioi § 25. Report of referees i lor §26. Trustees to convert estate into money; accounts, etc i loi § 27. When and how to call general meeting, iioi § 28. Proceedings at such meeting i loi § 29. Disbursements and commissions iioi §32. United States, etc., to be first paid iioi 833. Remainder, how distributed iioi § 34. Debts due from debtor, as guardian, etc, 1102 § 35. Creditors whose debts are not due 1102 § 36. Mutual credits, etc., when set off 1102 §37. Set-offs of demand purchased 1102 § 38. Suits pending; proportion to be retained, 1 102 §39. Penalties recovered by trustees 1102 § 40. If whole estate not distributed on first dividend, yearly dividends to be made, 1 102 § 41. Creditors omitting to deliver accounts on first dividend, etc 1 103 § 42. Unclaimed dividends 1 103 § 43. Surplus to be paid to debtor 1 103 § 44. Allowance to certain debtors 1 103 I 45. Trustees to render account on oath .... 1103 § 46. Trustees subject to order of courts; may be removed 1 103 § 47. Proceedings in common pleas removable into Supreme Court 1 103 § 48. If trustees be removed, etc., new trustees may be appointed 1 104 § 49. Trustee wishing to renounce, may obtain order to show cause 1 104 § 50. Id. ; application to whom made 1 104 I ANALYTICAL TABLE OF CONTENTS. XXXIX A X, PAGE. I. Statutory provisions as to receivers of corporations, 1087 §51. Application to be accompanied by ac- count ii°4 § 52. Affidavit to be annexed i io4 § 53. Notice to show cause i io4 § 54. Notice to be published i io4 §55. Hearing ^^°5 § 56. When trustee may be allowed to re- nounce ^^°5 § 57. Trustee to execute assignment 1105 § 58. Effect of assignment, powers, etc. , of new assignee ^ ^°5 § 59. When order to be made discharging trustee i^°5 § 60. Trustee thereupon discharged, subject to prior liabilities 1 1°5 § 61. Assignment, petition, etc., to be recorded and filed i^°5 § 62. Expenses to be paid by trustee 1 106 § 713 of the Code. Receiver, when appointed.. 1106 § 714. Notice of application for appointment of receiver ; when necessary 1 106 I 715. Security "°^ §716. Certain receivers may hold real property, 1107 Laws 1858, chap. 314: § I. Trustees, etc., may impeach assignments, 1107 § 2. And have actions against offenders 1107 Laws 1880, chap. 537: § I. Copy report to be served on attorney- general ii°S § 2. Motion by attorney-general to compel making report, etc 1 108 § 3. Attorney-general may move for order re- moving receiver, etc ii°8 § 4. Notices, etc., may be served on attorney- general I i°S Laws 1883, chap. 378: § I. Where application for appointment of a receiver to be made 1121, 1109 § 2. Compensation of receivers; division in certain cases ii55) 1 1°9 §3. Order to designate place of deposit, 11 24, 1109 xl ANALYTICAL TABLE OF CONTENTS Article. page. I. Statutory provisions as to receivers of corporations, 1087 § 4. Receiver to report in detail receipts and expenses every six montiis nog § 5. Intervenors to pay their own ex- penses ii55> mo § 6. Affairs to be closed up within one year, mo § 7. Attorney-general may apply to have re- ' ceiver removed, etc. iiio § 8. Copies of all papers to be served on at- torney-general 1 12 1, 1 1 10 § 9. Where applications to be made... 1122, im §10. Preference on calendars 1122,1111 §11. Repeal iiii Laws 1884, chap. 285, § i. AH property, etc., to vest in receiver except as to insurance com- panies nil Laws 1885, chap. 376, § i. Wages of operatives preferred to other debts im Rule 80. Time and application for place of appoint- ment of receiver; effect on subsequent suits .. 1112, 1121 IL Jurisdiction to appoint receiver under the decisions and when exercised 1112 Subd. I. Jurisdiction of court to appoint receiver.. . . 1112 vSubd. 2. When court will appoint receiver mS IIL Appointment and qualification of receiver 1121 Subd. I. Proceedings to obtain appointment 1121 Rule 80. Time and place of application for appoint- ment of receiver; effect on subsequent suits ; removal of 1112, 1121 Laws 1883, chap. 378: § I. Where application for appointment of a receiver to be made 1109, 1121 § 3. Order to designate place of deposit, 1109, 1124 ' § 8. Copies of all papers to be served on at- torney-general 1 1 10, 1121 I 9. Where applications to be made ... . mi, 1122 §10. Preference on calendars 1111,1122 Subd. 2. Who may be appointed 1128 Revised Statutes, 9th ed., pt. 3, chap. 8, tit. 4, §66. Receiver; security 1092, 1128 § 90 of the Code. Clerk of New York or Kings not to be referee, receiver, etc 1 1 28 Subd. 3. Receiver's bond and liability 1129 ANALYTICAL TABLE OF CONTENTS. xH Article. page. III. Appointment and qualification of receiver 1118 § 66 of Revised Statutes, as in Subd. 2 1092, 1 129 IV. Rights, powers and duties of receiver 1131 Subd. I. Title of receiver to property 1131 Laws 1884, chap. 285 : § I. All property, etc., to vest in receiver, ex- cept as to insurance companies. . . 1 11 1, 1 131 § 2. Transfer of security deposits to receiver; proceedings as to foreign companies .. 1131 Subd. 2. Powers, duties and liabilities of receiver 1135 Rule 81. Power of receiver to employ counsel 1153 V. Discharge of receiver ii54 Subd. I . Removal of receiver 1 154 Laws 1883, chap. 378, § 7- Attorney-general may apply to have receiver removed, etc 1 1 lo, 1 154 Subd. 2. Compensation of receiver 1155 Laws 1883, chap. 378: § 2. Compensation of receivers; division in certain cases 1 109> 1 155 § 5. Interveners to pay their own ex- penses 1 1 10, 1 155 Revised Statutes, § 76, p. 2401. Receivers' commissions 1094? ii5^ Subd. 3. Accounting by receiver 1158 Revised Statutes, § 42, p. 2396. Receiver's gen- eral powers and duties 1091, 1 158 Subd. 4. Effect of discharge of receiver 1161 VI. Precedents relating to receivership of corporation . . ii6r CHAPTER XXII. EXECUTOR OR ADMINISTRATOR, ACTION BY OR AGAINST. Article. page. I. Action, how brought and conducted, and effect of judgment 1189 Subd. I. When action proper in representative and when in individual capacity 1 189 § 1814. Action, etc., by and against executor, etc., to be brought in representative capacity 1 189 Subd. 2. When personal and representative actions joined 1201 xlii ANALYTICAL TABLE OF CONTENTS. Article. page. I. Action, how brought and conducted, and effect of judgment 1189 § 1815. When personal and representative causes of action may be joined 1201 Subd. 3. When actions survive and what abate by death 1 203 Revised Statutes, 9th ed., p. 1907: § I . Action for wrongs 1 203 § 2. Preceding section quaUfied 1203 §11. Executors of executors 1 203 § 17. Executor of their own wrong 1203 § 18. Rights, etc., of adminstrators de bonis non 1203 Subd. 4. Powers of executor of an executor and exe- cutor in his own wrong 1212 Subd. 5. Regulations as to parties and practice 12 13 § 1816. When separate dockets and executions, 12 13 § 1817. Regulations, when some of the execu- tors, etc., are not summoned 1213 § 1818. Executors who have not qualified, not necessary parties .. 1213 § 1824. Want of assets not to be pleaded by ex- ecutor, etc 1213 Subd. 6. Pleadings 1215 II. Action by legatee against executor and its effect 12 18 §1819. Action by legatee, etc., against executor, etc 1218 §1820. Id.; by infant; guardian's bond 12 18 § 182 1. When action barred by judgment against heir, etc 1218 III. Limitation of action by creditor on rejected claim. . . 1222 § 1822. Limitation of action by creditor on claim rejected, etc 1222 § 2718. Ascertainment of debts 1222 IV. Judgment and execution against executors 1227 § 1823. Decedent's real property not bound by judgment against executor, etc 1227 § 1825. Leave to issue execution against execu- tor, etc 1227 § 1826. Id.; how procured; order; and contents thereof 1227 §1827. Security may be required from a legatee, 1228 ANALYTICAL TABLE OF CONTENTS. xliii Article. page. V. Miscellaneous practice regulations 1232 §1828. Actions, etc., when not to abate 1232 § 1829. Execution on former judgment 1232 § 1830. Action against executor, etc., who has been superseded 1232 §1831. False pleading by executor, etc 1232 §1832. When inventory may be contradicted. . . 1232 § 1833. Liability for uncollected demands 1233 § 1834. The last two sections qualified 1233 § 1376. Execution after death of judgment- creditor 1 233 VI. Costs in actions against executor or administrator. . . 1235 § 1835. Costs; how awarded 1235 § 1836. Id. ; when awarded 1235 § 3246. Order for costs personally by or aganist executors or administrator 1245 CHAPTER XXIII. CREDITOR AGAINST HIS DEBTOR'S NEXT OF KIN, LEGATEE, HEIR OR DEVISEE, ACTION BY. Article. I. Action against next of kin, legatees, etc 1247 § 1837. When action lies against next of kin, legatees, etc 1247 § 1838. Action may be joint or several 1248 § 1839. ^^ joint action, recovery to be appor- tioned 1248 § 1840. Recovery in a several action 1248 § 1841. Requisites to recovery in an action against legatee 1 248 § 1842. Id.; in action against a preferred lega- tee 1248 II. When action lies against heirs and devisees 1252 § 1843. Liability of heirs and devisees 1252 § 1844. When action therefor may be brought. . 1252 §1845. Eifect of application to sell real property, 1253 §1846. Action must be joint 1253 §1847. Recovery to be apportioned 1253 § 1848. Requisites to recovery against heirs.... 1253 § 1849. ^^- ■' against devisees 1253 III. Regulations peculiar to such actions 1261 § 1850. Deductions for prior recoveries 1261 Xliv ANALYTICAL TABLE OF CONTENTS. Article. page. 111. Regulations peculiar to such actions 1261 § 185 1. Complaint to describe land descended, etc 1261 § 1252. Judgment; when to be satisfied out of land 1261 § 1853. Id. ; when not a lien on land aliened. . . 1261 § 1854. How judgment taken, when land aliened, 1262 § 1855. Classification of debts, to be enforced under this article 1262 § 1856. Defence, by reason of other prior or equal claims 1262 § 1857. Id. ; when such a claim is paid 1262 § 1858. Action not suspended by infancy 1262 § 1859. This article not applicable where will charges real property, etc 1262 § i860. One action, where same person is heir, devisee, etc 1263 CHAPTER XXIV. ESTABLISH OR IMPEACH A WILL, ACTION TO. Article. page. I. When action will lie 1265 § 1861. When action to establish a will may be brought 1265 II. Proof necessary to establish lost will 1268 § 1865. Proof of lost will in certain cases 1268 III. Contents of judgment 1270 §1862. Judgment, that will be established 1270- § 1863. Judgment admitting the will to probate, 127 1 § 1864. Contents of judgment, surrogate's duty, 1271 IV. Action to construe will and effect of article 127 1 § 1866. Action to establish, etc., will, relating to real property 1 2 7 1 § 1867. Retrospective effect of this article 1271 V. Action to determine validity of will 1277 § 2653a. Determining validity of a will 1277 ANALYTICAL TABLE OF CONTENTS. xlv CHAPTER XXV. GENERAL AND MISCELLANEOUS PROVISIONS RELAT- ING TO ESTATES. PAGE. § 1868. Action by cliild born after will, or by witness to will 1282 § 1869. Receiver, as successor of surviving ex- ecutor, etc 1282 § 1870. Next of kin defined 1283 CHAPTER XXVI. JUDGMENT CREDITOR'S ACTION. Article. page. I. When action may be maintained 1284 Subd. I. When action may be maintained 1284 §3343, subd. 14. Term "judgment creditor's action" defined 1284 Subd. 2. Action under Code provisions 1291 § 187 1. When judgment-creditor may bring action 1291 § 1872. To what county execution must have issued 1291 Subd. 3. Action in nature of creditor's bill by execu- tors and others 1302 Laws 1894, chap. 740, § i. Trustees, etc., may im- peach assignments 1302 Subd. 4. Parties plaintiff 1306 Subd. 5. Parties defendant 1310 Subd. 6. Pleadings 1313 Subd. 7. What is held to be proof of fraudulent intent, 1325 Subd. 8. Discovery and miscellaneous matters of practice 1338 § 1878. How discovery may be compelled 1338 II. What property may be reached by creditor's bill and how applied „ 1341 § 1873. What property may be reached 1341 § 1874. Interest of judgment-debtor in land con- tract may be reached 1341 § 1875. Id. ; how applied 1341 § 1879. Application of this article; what prop- erty cannot be reached 1341 xlvi ANALYTICAL TABLE OF CONTENTS. Article. page. III. Injunction and receiver 1355 § 1876. Injunction may be issued 1355 § 1877. Receiver may be appointed 1355 CHAPTER XXVII. PRIVATE PERSON UPON AN OFFICIAL BOND, ACTION BY. PAGE. § 1880. Application for leave to sue sheriff's bond ; proof required 1358 § 1881. Order granting leave ; action thereupon, 1358 § 1882. Successive actions 1358 §1883. Indorsement upon execution 1358 § 1884. Collection of execution; when a defence to subsequent action 1359 § 1885. When claimants entitled to ratable dis- tribution 1359 § 1886. Action upon a surrogate's bond 1359 § 1887. Action upon a county treasurer's bond.. 1359 § 1888. Actions upon official bonds of other offi- cers 1359 § 1889. Actions, etc., under the last three sec- tions regulated 1360 § 1890. Receivers, etc., deemed public officers. . 1360 § 1891. Demand of money; when necessary be- fore application 1360 § 1892. Application may be made ex parte 1360 CHAPTER XXVIII. PRIVATE PERSON FOR A PENALTY OR FORFEITURE, ACTION BY. Article. page. I. By whom action maintained and in what manner.... 1369 § 1893. Action by person specially aggrieved ... 1369 § 1894. Action by common informer 1369 II. Summons, how indorsed and served . 137 1 § 1897. Indorsement upon summons 1371 § 1895. Service of summons 1371 III. Pleadings 1374 IV. When recovery had and to what extent 1376 § 1896. When action not barred by a collusive recovery 1376 § 1898. AVhen part of a penalty may be recovered, 1376 ANALYTICAL TABLE OF CONTENTS. xlvii CHAPTER XXIX. CERTAIN ACTIONS TO RECOVER DAMAGES FOR WRONGS. Article. page. I. Civil and criminal prosecutions not merged 1377 § 1899. Civil and criminal prosecutions not merged i377 II. Action for suing in the name of another 1378 g 1900. Actionfor suing, etc., in name of another; made also a misdemeanor 1378 § 1901. Treble and other increased damages to be recovered 1378 III. Action for causing death by negligence 1378 Subd. I. The right of action and limitation thereof . . 1378 § 1902. Action for causing death by negli- gence, etc 1378 Subd. 2. By and against whom action maintained 1378 Subd. 3. Pleadings 1385 Subd. 4. Evidence 1386 Subd. 5. General provisions relative to the action 1389 Subd. 6. Damages and for whose benefit awarded 1393 §1903. Damages, and for whose benefit 1393 § 1904. Id. ; amount of recovery 1393 §1905. " Next of kin" defined 1393 IV. Action for slander of a woman i399 § 1906. Action for slander of a woman 1399 V. When action for libel cannot be maintained 1401 § 1907. When action for libel cannot be main- tained 1401 § 1908. The last section qualified 1401 CHAPTER XXX. MISCELLANEOUS ACTIONS AND RIGHTS OF ACTION. Article. page. I. What claims or demands are assignable 1403 Subd. I. What claims are assignable 1403 § 1909. When transferee of claim or demand may sue; rights of defendant, etc 1403 § 19 10. What claims or demands may be trans- ferred 1404 §1911. Id.; cause of action for usury 1404 § 1912. Judgment, when assignable 1404 xlviii ANALYTICAL TABLE OF CONTENTS. Article. page. I. What claims or demands are assignable 1403 Subd. 2. What claims are not assignable 1412 Subd. 3. Who has power to assign claims 1413 Subd. 4. What constitutes an assignment 1414 Subd. 5. What passes under an assignment 1417 II. When judgment can be sued 1418 § 1913. Action upon judgment regulated 1418 III. Action for discovery abolished 142 1 § 1914. Ancillary action for discovery abolished, 142 1 IV. Action on a penal bond. 1422 §1915. Action upon a penal bond 1422 V. Action by surety or trustee to recover costs 1428 § 1916. Action by surety or trustee to recover costs, etc 1428 VI. Action on lost negotiable paper 1429 § 1917. Action upon lost negotiable paper 1429 § 1918. The last section qualified 143° CHAPTER XXXI. UNINCORPORATED ASSOCIATION, ACTION BY OR AGAINST. Article. page. 1. When action can be maintained 143 1 § 1919- Actions, etc., by or against associations of seven or more persons 143 1 II. Effect of death of party or of misnomer 1438 § 1920. Proceedings in case of death, etc 1438 § 1924. When objection of misnomer, etc., of parties not available .... 1438 III. Effect of judgment 1438 §1921. Effect of judgment; execution thereupon, 1438 IV. Subsequent action against members and statute of limitations i439 § 1922. Subsequent action against members.... 1439 § 1923. This article permissive; effect upon statute of limitations 1439 ANALYTICAL TABLE OF CONTENTS. xlix CHAPTER XXXII. CERTAIN COUNTY, TOWN AND MUNICIPAL OFFICERS, ACTIONS BY OR AGAINST. Article. page. I. Action by taxpayer against a public officer 1441 § 1925. Action by a taxpayer against a public officer . , 1441 Laws 1892, chap. 301, § i. Action against pub- lic officer for illegal acts 1441 Laws 1892, chap. 685, § 3. Investigation of expenditures of towns and villages 1443 II. When and in what manner actions maintained by and against certain officers 1466 § 1926. Actions by certain county, town and mu- nicipal officers 1466 § 1927. Actions against such officers 1466 § 1928. The last two sections qualified 1466 § 1929. Designation of such officers in the sum- mons, etc 1469 § 1930. Successor may be substituted 1467 § 193 1. When execution against officer not to issue 14^7 CHAPTER XXXIII. JOINT DEBTORS, ACTIONS AND RIGHTS OF ACTION BY AND BETWEEN. Article. page. I. Judgment and execution against defendants jointly indebted when all are not served 1472 § 1932- Judgment against defendants jointly in- debted, when all are not served 1472 § 1933- Effect of such judgment 1473 §1934. Execution; indorsement thereupon ... 1473 § 1935. How collected i473 § 1936- Judgment, how docketed; effect of docketing i473 II. Proceedings in action to charge defendants not per- sonally summoned i477 § 1937. Action to charge defendants not person- ally summoned i477 § 1938. Complaint in such action i477 1 ANALYTICAL TABLE OF CONTENTS. Article. page. II. Proceedings in action to charge defendants not per- sonally summoned i477 § 1939. Answer i477 § 1940. Provisional remedies i477 § 1941. Judgment i477 III. Composition of one of joint debtors 1481 § 1942. Joint debtors may compound separately; mode and effect 1481 § 1943. Satisfying judgment 1481 § 1944. Rights of the debtors not released 1481 IV. Action against persons engaged in transportation. . . 1484 § 1945. Action against persons engaged in trans- portation 1484 V, Actions against and between partners 1484 § 1946. When partner not sued remains liable . . 1484 § 1947. Continuance of partnership business dur- ing action for accounting, etc 1485 CHAPTER XXXIV. USURPER OF AN OFFICE OR FRANCHISE, ACTION AGAINST. Article. page. I. When and how action maintained 1487 § 1948. Attorney-general may maintain action.. 1487 § 1949. Proceedings when complaint names rightful incumbent 1488 §1954. One action against several persons. ... 1488 II. Proceedings in the action 1494 Subd. I. Pleadings - i494 Subd. 2. Injunction 1498 § 1955- ^^'hen injunction may be granted 1499 Subd. 3. Trial by jury i499 § 1950. Action triable by jury i499 Subd. 4. Evidence 150° Subd. 5. Costs and appeal i5°° III. Judgment and its effect i5°2 § 1 95 1. Assumption of office by person entitled, 1502 § 1952. Proceedings to obtain books and papers, 1502 § 1953. Damages ; how recovered 1502 § 1956. Final judgment in action for usurping office, etc 1502 ANALYTICAL TABLE OF CONTENTS. H CHAPTER XXXV. MISCELLANEOUS ACTIONS ON BEHALF OF THE PEOPLE. Article. page. I. Action to vacate letters-patent 1508 § 1957- When attorney-general may maintain action 1508 § 1958. Action triable by jury 1508 § 1959. Copy of judgment-roll to be filed, etc .. 1508 § i960. Transcript to be sent to county clerk, etc 1509 II. Action for a fine, penalty or forfeiture or upon a forfeited recognizance 1509 § 1961. When action cannot be maintained 1509 § 1962. Action for forfeiture, etc 1509 § 1963. Money recovered, how disposed of 1509 § 1964. Certain proceedings in the action regu- lated 1509 § 1965. Recognizance; how forfeited 1509 § 1966. Action on recognizance 15 lo § 1967. Money received by district attorney; how disposed of. .... 15 lo § 1968. District attorney to render account .... 15 10 III. Actions founded upon the spoliation or other misap- propriation of public property 151^ § 1969. Action in court of the State for public funds illegally obtained, converted, etc. 15 13 § 1970. Stay of other domestic actions; parties thereto to be brought in 15 13 §1971. Actions, etc., in foreign courts 15 13 § 1972. Money damages, etc., vest in people, on commencement of action 15 13 § 1973. Limitation of action 15 13 § 1974. Ultimate disposition of proceeds of action in court of the State 15 14 § 1975. Id.; upon petition of corporation, etc., aggrieved 15 14 § 1976. Attorney-general must bring action. .. . 15 14 IV. Action to recover property escheated or forfeited. . . 15 15 § 1977. Attorney-general to bring ejectment for real property escheated or forfeited. . 1515 § 1978. Notice to be published before trial or judgment 15 15 Ill ANALYTICAL TABLE OF CONTENTS. Article. page. IV, Action to recover property escheated or forfeited. . . 15 15 § 1979. When unknown claimants may be made defendants 15 16 § 1980. Effect of judgment against unknown claimants 15 16 § 1981. Attorney-general to report recoveries to commissioners of land office. ...... 15 16 § 1982. Action to recover personal property for- feited for treason 15 16 V. Miscellaneous provisions relating to action on behalf of the people 15 17 §1983. Scire facias, quo warranto, ttc, a.ho\ish.ed, 15 17 § 1984. Actions to be brought in the name of the people 15 17 § 1985- Judgment for costs may be taken against the people 1517 § 1986. Relator; when to be joined as plaintiff; compensation of attorney-general .... 15 17 § 1987. Costs; how collected against corporation and usurpers of franchise 15 17 § 1988. Joinder of causes of action against same person 15 17 § 1989. Consolidation of actions against several defendants 15 18 § 1990. When people, municipal corporation, etc., not required to give security 1518 SPECIAL ACTIONS UNDER THE CODE OF CIVIL PROCEDURE. CHAPTER I. * ACTION TO RECOVER REAL PROPERTY (EJECTMENT). PAGE. Article i. Nature and purpose of the action 2 2. When the action can be maintained 4 3. When the action will not lie. Sees. 1498, 1499,,. 9 4. By whom the action can be maintained. Sees. 1500, 1501, 1680 13 5. What is necessary to entitle plaintiff to recover. . . 22 6. Who may be defendants and who must be joined as such. Sees. 1502, 1503 26 7. Production of authority by attorney. Sees. 15 12, 1513, 1514 31 8. The complaint. Sec. 151 1 S3 9. Defences, legal and equitable, and how pleaded. . . 43 10. What rents and profits are recoverable and re- ceivership. Sees. 1496, 1497, 1531 63 11. Right to recover against occupants separately. Sees. 1516,1517,1518 70 12. When action will be severe'. Sees. 1521, 1522, 1523. 72 13. Evidence. Sec. 15 15 73 14. Verdict. Sec. 1519, 1520 78 p 15. New trial and its effect, and evidence thereon. Sees. 1525, 1526, 1527, 1528, 1530 80 16. Effect of judgment. Sees. 1529, 1524 87 17. Costs in ejectment 90 18. Execution in ejectment 92 19. Ejectment for non-payment of rent, and pro- cedure thereon. Sees. 1504-1510 95 *The leading authorities on the law of Ejectment are Tyler on Ejectment and Adverse Enjoyment, Newell on Ejectment, Article "Ejectment" American and English Encyclopedia of Law. The subject is treated in Bingham on Real Es- tate and to a greater or less extent in all works on real property. [I] ACTION TO RECOVER REAL PROPERTY (EJECTMENT), Art. I. Nature and Purpose of the Action. Sections of the Code of Procedure and Where Found in this Chapter, sec. art. page. 1496. Plaintiff may recover damages with the land 10 63 1497. Rents and profits to be included in damages 10 63 1498. Mortgagee cannot maintain action 3 9 1499. Action cannot be maintained for dower 3 10 1500. Separate action by joint tenant or tenant in common 4 13 1501. Grantee of lands held adversely may maintain action 4 15 1502. Against whom action to be brought 6 26 1503. Who may be joined as defendants 6 27 1504. When action may be brought for non-payment of rent 19 95 1505. Id.; when right of re-entry is reserved for want of distress. . . 19 95 1506. Action against tenant, when proceedings to be stayed 19 95 1507. Id.; amount of rent in arrear to be stated in judgment 19 95 1508. 1509. Id.; when possession to be restored to defendant 19 96 1510. Id.; use of property, when set off against rent 19 96 1511. Property claimed in action ; how described in complaint 8 33 1512. Motion for plaintiff's attorney to produce his authority 7 3^ 1513. Order thereupon 7 3^ 1514. Evidence of authority 7 32 1515. When ouster to be proved 13 73 1516. Rule, when there are distinct occupants 11 70 1517. The last section qualified n 7i 1518. When plaintiff may recover against one defendant, subject to rights of others n 7i 1519. Verdict, etc., to state nature of plaintiff's estate 14 7S 1520. Expiration of plaintiff's title before trial 14 78 1521. Abatement of action 12 72 1522. Action to be divided, when different persons succeed to different parcels 12 72 1523. Id.; when different persons succeed to real property and to rents and profits 12 72 1524. Effect of judgment rendered after trial of issue of fact 16 87 1525. New trial may be granted 15 80 1526. Effect of judgment by default, etc 15 Si 1527. Id. ; exception in case of disability 15 81 1528. The last three sections qualified 15 Si 1529. Possession not to be changed by vacating of judgment 16 87 1530. Evidence on new trial 15 Si 1531. Damages recoverable ; set-off by defendant 10 63 1680. Reversioner, etc., may bring action after tenant's default 4 22 ARTICLE I. Nature and Purpose of the Action. Ejectment is brought to establish through a judicial determi- nation, the title to land ; and to remove therefrom those wrong- ACIION 1 O RECOVER REAL PROPERTY (EJECTMENT), 3 Art. I. Nature and Purpose of the Action. fully in possession or whose title has been determined by limitation, forfeiture or otherwise. It lies wherever the right of entry exists, and the interest is of such a character that posses- sion of the land can be delivered in execution of a judgment for its recovery. Gerard's Titles to Real Estate, 4th edition, p. 825. In the original draft of the Code of Civil Procedure presented to the legislature, the first section of the article treating of the action to recover the possession of lands, contained the defini- tion, "An action to recover real property is styled in this act an action of ejectment." This clause was subsequently stricken out, although the codifiers stated their intention to formally recognize the word " ejectment " as a word which had been in use under the former code and had a well-defined meaning at common law. The definition of the action and statutory authority therefor, were abolished by the repeal of the Revised Statutes, and there- fore the common-law right is the only authority for the action, as regulated by the Code of Civil Procedure, except that section 3343, subdivision 20, defines the meaning of the words " an action of ejectment " to be " an action to recover the immediate pos- session of real property." This remark is doubtless intended to apply to the action regulated by this article of the code although the revisers evidently overlooked these definitions and entitled the action " an action to recover real property," altogether ignor- ing the word " ejectment " which has been retained in common use and is here used as a sub-title. It is in substance, after abolishing the formalities, the action which has been recognized for a long period as the appropriate method for ejecting a party not entitled to possession of lands at the suit of the rightful owner or person entitled to posses- sion. The right to possession of real estate was originally determined by real actions, which in time became so incumbered with useless technicalities as to be almost useless, great strictness of pleading being required, and the practice being of the most formal character, substance being sacrificed to form. Sedgwick & Wait on Titles to Land, p. 4. Thereupon, the form of action familiar at common law was introduced, and the legal fiction was resorted to of a demise, first to a real, and then to a fictitious person, as plaintiff, who brought an action against the person in possession. Wait's Actions and Defenses, vol. 3, p. 2. The effect of the action at first was only to determine the right to the pos- 4 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 2. When the Action can be Maintained. session. Ejectment is a species of mixed action, which will lie to recover the possession of lands, with damages and costs for the wrongful withholding of them, being the principal method in modern use for trying the title to land. Burrill's Law Dic- tionary. It is a possessory remedy, and does not lie by one who has not an immediate interest or right to possession. Comyn's Digest, vol. 3, p. 61 1. It was formerly a mixed action, grounded on the right to possession of the premises in question between the parties. Bacon's Abridgment, title Ejectment. By the Code of Procedure the action became one to try title between the real parties in interest, and as such it is now recognized although not defined, under the name of " action to recover real property." It now tests not only the right to the possession but the title under which the right exists, whether in fee for life or for years. Cagger v. Lansing, 64 N. Y. 417. It has always in practice retained the name of ejectment, and will be so treated for convenience in this chapter. ARTICLE II. When the Action can be Maintained. The action of ejectment is maintainable only for corporeal here- ditaments, something tangible and visible, and upon which an entry can be made and of which the owner can be disseized. Child V. Chappell, 9 N. Y. 246; Roivan v. Kclscy, 18 Barb. 484; Jacksofi V. Loiicks, 9 Johns. 298 ; WoodJiull v. RoscntJial, 61 N. Y. 382 ; Jackson v. May, 16 Johns. 184. The true test of this action seems to be that the thing claimed should be a corporeal hereditament; that a right of entry should exist at the time of the commencement of the action, and the interest be visible and tangible, so that the sheriff may deliver the possession to the plaintiff in execution of the judgment of the court. Rowan v. Kclsey, 18 Barb. 484. In Howe v. Bell, 143 N. Y. 190, 62 St. Rep. 361, plaintiff was held entitled to maintain ejectment upon the question as to whether a certain instrument imposed an easement on his lot. Whenever one person enters upon and takes permanent posses- sion of the real property of another, claiming title thereto, whether it arises over a disputed boundary or otherwise, an un- lawful ouster has been made, for which an action of ejectment is ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 5 Art. 2. When the Action can be Maintained. the proper and only sufficient remedy. Lcprellv. Kleinschmidt, 112 N. Y. 364, reversing 17 St. Rep. 231. Where individuals without authority erected a pier in New York city, held that they acquired no right by adverse possession, prescription or estoppel and that an action of ejectment could be maintained by the city. Mayor, etc. v. Law, 125 N. Y. 380, 35 St. Rep. 437- It will lie for a house or a room, Childv. Chappell,^^. Y. 246, sjipra ; or for a church or chapel. Van Deuscn v. Presbyterian Con- gregation of Fort Edzvard, 3 Keyes, 550. It was held in Jack- son V. May, 16 Johns. 184, siipra, that ejectment would lie for any- thing attached to the soil ; but this must be taken subject to the qualification that it is part of the realty. Ejectment lies for lands covered by a mill dam. Bcals v. Stewart, 6 Lans. 408. Lands under water may be recovered by ejectment. People v. Manran, 5 Den. 389. So held in cases of grant of lands under water by the State. Chaniplain & St. Lazvrence R. R. Co. v. Valentine, 19 Barb. 484 ; Blakeslee Co. v. B lakes lees Sons, 59 Hun, 209, 13 Supp. 493, 37 St. Rep. 707. See Murphy v. Norton, 61 How. 197, as to title to lands reclaimed from the sea by natural means. The owner of the fee of a highway over which the public have an easement for travel may recover the land within the limits of the highway, in eject- ment against one who has illegally appropriated it to a purpose not authorized by the easement. Et::: v. Dailey, 20 Barb. 32 ; Carpenter v. Oswego &" S. R. R. Co. 24 N. Y. 655 ; IVager v. Troy Union R. /?. C^. 25 N. Y. 526 ; Reformed Church v. Schoolcraft, 65 N. Y. 135 ; Brozvn v. Galley, Hill & Den. Sup. 308. So ejectment will lie against a railroad company by the owner of the fee where the street has been appropriated without making compensation therefor, hosier v. N. V. C. R. R. Co. 42 Barb. 465 ; JVagcr v. Troy Union R. R. Co. 2^-, N. Y. ^26, supra ; Carpenter v. Oszvego, etc., R. R. Co. 24 N. Y. 655, supra. The action may be main- tained against a city to recover land used for a street, under the claim that the owner has no private right in the land. Strong v. City of Brooklyn, 68 N. Y. i. Actual entry upon a small piece of land which, for natural rea- sons, cannot be fenced, placing stone monuments around it and bring-in"- lumber thereon to build, constitutes such possession as will entitle the party to maintain ejectment against a subsequent 6 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 2. When the Action can be Maintained. intruder. Prior possession under a claim of ownership is enough to maintain ejectment against one claiming a right of possession only under a later entry. Mission of the Immaculate Virgin v. Cro7iin, 14 Misc. 372, 36 N. Y. Supp. 'j'j. The maintenance of a flagman's shanty is a sufficient occupa- tion of land to justify the institution of an action of ejectment, and the right to a recovery is not affected by a removal of such shanty during the pendency of the action. Archibald v. ^V. Y. C. & H. R. R. R. Co. I App. Div. 251, 37 N. Y. Supp. 336, 72 St. Rep. 689. An action founded only upon adverse possession, can be main- tained even against the owner, where the plaintiff's claim of title is not founded upon a written instrument, judgment or decree. Plaintiff must show an actual, continued occupation of the premi- ses under claim of title. Under such circumstances where the land has been protected by a substantial enclosure or been usually cultivated or improved, the premises actually occupied can be deemed to have been held adversely. Barnes v. Light, 116 N. Y. 34; s. c. 26 St. Rep. 654. It was held in Brondage v. Warner, 2 Hill, 145, that ejectment would not lie for land covered by a party wall. See Rogers v. Sins he inter, 50 N. Y. 646. Where a clause in a lease provided for its determination at the option of the lessors on the non-payment of the rent, they may maintain ejectment on breach of condition, though no right of re- entry is reserved. H or ton v. N. Y. C. & H. R. R. R. Co. 12 Abb. N. C. 30. In Leprell v. KleinscJimidt , 112 N. Y. at p. 369, Ruger, Ch. J. says: " We do not undertake to decide whether an action of ejectment will lie, for the projection of the eaves of a building over the lands of another, as the question does not arise on this appeal," and cites Sherry v. Freckling, 4 Duer. 453 ; Aiken v. Benedict, 39 Barb. 400 ; Vrooman v. Jackson, 6 Hun, 326. An executory contract for the sale of the lands affords no right to the possession to the purchasers holding under it, as against a grantee of the legal title, and the latter may recover possession in ejectment without putting the defendant in default under the contract by tendering a deed, as the action is not founded on such contract but rests on legal right. Riseley v. Rice, 40 Hun, 585. In order to maintain the action the claim of title, or of ACTION TO RECOVER REAL PROPERTY (EJECTMEXT). / Art. 2. When the Action can be Maintained. some interest in the premises, must be such a claim that, if it were reduced to possession or enjoyment, it would constitute an actual occupation. A claim to use a wharf as appurtenant to a mill is not enough. CJiild v. Chappcll, 9 N. Y. 246. Though a lease for seven years is a chattel interest, ejectment lies to re- cover possession of the land demised. Olcndorf w Cook, i Lans. ^J. One in possession under a contract of sale may maintain ejectment against a stranger. MiirpJiy v. Loomis, 26 Hun, 659. Where a railroad company has constructed its track across the corner of a lot of land over wdiich it ordinarih- runs its trains, its acts amount to such an appropriation of the possession of the lands so taken as to authorize ejectment ; in such case no demand of possession or notice to quit is necessary, and plaintiff may recover, subject to the easement of the public, that part of an ad- joining street to which he has title, which is also occupied by such railroad tracks. Gas-light Co. of Syracuse v. Rome, etc. R. R. Co. 1 1 Civ. Pro. R. 239. This case is modified to hold that the owner of the land of a street may recover such part as is en- tered upon, without the consent of the owner, and used by a rail- road operated by steam. S. C. 51 Hun, 119; 5 N. Y. Supp. 459. Ejectment will lie against a railroad company to recover a strip of land, not occupied by the track but which defendant claims to own where the extent of the lot was not given by deed ; it being incumbent on defendant to show that the right of way exceeded the space occupied by its track. Harris v. Brooklyn, etc. R. R. Co. 15 Weekly Digest, 362. The owner of land upon which a contractor is erecting a build- ing has a right to enter the building for the purpose of inspecting the work as it progresses, and upon his exclusion is not obliged to have recourse to a rescission of the contract but may maintain ejectment against the contractor. Smith v. Revels, 79 Hun, 213, 61 St. Rep. 138, 29 Supp. 658. Defendants claimed under a deed from the grantee of the sheriff by virtue of a sale under a judgment against the plaintiff's grantor ; the judgment having been decided by the Court of Appeals to be void by reason of insufficient service by publica- tion of the summons in the action in which it was granted, held that plaintiff could recover in ejectment. McCracken v. Flana- gan, 51 St. Rep. 545, 21 Supp. 1 108. The permanent appropriation by a telegraph company of a por- ACTION TO RECOVER REAL PROrERTV (EJECTMENT). Art. 2. When the Action can be Maintained. tion of a highway, the fee of which is in the adjoining owners, by the erection of poles thereon without consent of such owners or compensation to them, is unlawful, and ejectment is maintainable against it by such owners. Eels v. American Telephone and Tele- graph Co. 143 N. Y. 133, 62 St. Rep. 138. Where the sole question is one of boundary which has been acquiesced in since 1839 ^y both owners, plaintiff is entitled to recover. Dale v. Jackson, 30 St. Rep. 373. A devisee who claims a mere legal estate in real property of the testator, where there is no trust, must assert his title by eject- ment rather than by an action, co establish the validity of the devise. Anderson v. Appleton, 48 Hun, 534. The action of ejectment is the proper remedy to try the title by adverse possession to real estate. Van Schuyver v. Mulford, 59 N. Y. 426; Florence \. Hopkins, ^6 N. Y. 182 ; Caggerw. Lans- ing, 64 N. Y. 417. It is the proper remedy to determine validity of a will devising real estate. Post v. Hover, 33 N. Y. 593. It is the appropriate action to determine the validity of a conveyance. Bockes V. Lansing, 13 Hun, 38 ; affirmed, 74 N. Y. 437. In Vroo- man v. Jackson, 6 Hun, 326, it was held that, where the com- plaint was in ejectment, an amendment could not be had on the trial so as to restrain an unlawful interference ; while in Brozvn v. Leigh, 49 N. Y. 78, an amendment was allowed in an action to compel the determination of conflicting claims to real property so as to .set forth a cause of action in ejectment. In Madison Ave- nue Baptist Church v. Baptist Church in Oliver Street, 73 N. Y. 82, an action in ejectment was, by supplemental pleading, sub- stantially turned into an action, on the part of plaintiff, to redeem from a mortgage, and on the part of defendant, to an action to foreclose. It .seems that the remedy of a purchaser of real estate, if the vendor refuses to surrender possession, is by ejectment alone, in which he may recover damages by way of mesne profits, for the unlawful withholding the possession. Preston v. Haivley, loi N. Y. 586. The action can be maintained by an infant for property collu- sively awarded for dower. § 1605. By remainderman after judg- ment by default of life tenant. § 1680. By landlord for eject- ment of tenant holding over. 2 R. S. p. 18 19, i^ 9, 9th ed. And the attorney-general may bring ejectment for escheated property. § 1977-1982. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 9 Art. 3. When the Action Will Not Lie. The action must be tried in the county where the property is situated under § 982, and is triable by a jury under § 968, sub. 2. Every tenant is, under § 27, p. 1821, R. S. 9th ed., bound to give notice to his landlord of any process in ejectment served upon him, under penalty as therein prescribed. ARTICLE III. When the Action Will Not Lie. Sub. I. Mortgagee cannot maintain ejectment. § 1498. 2. Action cannot be maintained for dower. § i499- 3. When action cannot be maintained. Sub. I. Mortgagee Cannot Maintain Ejectment. § 1498. § 1498. Mortgagee cannot maintain action. A mortgagee, or his assignee or other representative, cannot maintain such an action, to recover the mortgaged premises. The remedy by ejectment was formerly used by mortgagees to recover possession of the mortgaged premises after default by the mortgagor. Prior to the Revised Statutes that was the rule in this State. The present section is a re-enactment of 2 R. S. 312. The statute is cited or commented upon. Packer v. R. &■ S. R. R. Co.iyN. Y. 283 ; Trimni v. Marsh, 54 N. Y, 599 ; Madison Ave- nue Baptist Cliurch v. Oliver Street Baptist Church, 73 N. Y. 82 ; Denning \. Fisher, 20 Hun, 178. But on the other hand, a mort- gagor in default may have ejectment against an intruder or one claiming under a void deed, as he has the right of possession against every one except the mortgagee in possession. Olmsted V. Elder, 5 N. Y. 144. The rule preventing a mortgagee from maintaining ejectment applies to a deed absolute on its face, but held as security. Murray v. Walker, 31 N. Y. 399 ; Carr v. Carr, 52 N. Y. 25 1. The provision of the statute embraces every descrip- tion of mortgage which, prior to the Revised Statutes, could have been made, and it is not confined to instruments accompanied by a bond or other security for the payment of money and which contain a power of .sale. Stewart v. Hutchins, 13 Wend. 485; affirmed, 6 Hill, 143. One who takes an a.ssignment of the purchaser's interest in an executory contract for lands as security for a debt, cannot, on lO ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 3. When the Action Will Not Lie. default, recover possession of the lands from his assignor. Such an assignment is in the nature of a mortgage and may be fore- closed in equity ; but, to recover possession in ejectment,- plain- tiff must show a legal title. Campbell v. Szvan, 48 Barb. 109. See Meigs v. Willis, 66 How. 466 ; Holconibe v. Holcombe, 2 Barb. 20. Ejectment cannot be maintained on a title founded on a deed which although absolute on its face, was known to the plaintiff when he took the title to have been intended as security for a loan. Berdcll v. Berdell, 33 Hun, 535. A mortgagee who gets in possession by foreclosure which is void as to the owner, does not become a mortgagee in possession, and ejectment will lie against him. Howell v. Leavitt, 95 N. Y. 617. One who purchases under foreclosure sale by advertisement for the benefit of a third person, under an agreement by which he is to hold the title as security for his advance, takes only the rights of a mortgagee and cannot maintain ejectment. Vaii Vleck v. Enos, 88 Hun, 348, 34 Supp. 754, 68 St. Rep. 572. A mortgagor cannot maintain ejectment against a mortgagee in possession, who has received rents and profits sufificient to satisfy the mortgage, until an accounting has been had and the rents and profits actually applied on the mortgage. Hubbcll v. Moulson, 53 N. Y. 225. But a mortgagee in possession can recover in ejectment on proof of adverse possession, under the statute, against one who has ousted him from possession. Haley V. Steves, 7 St. Rep. 698, following Bedell v. Shaw, 59 N. Y. 50. Sub. 2. Action Cannot be Maintained for Dower. § 1499- § 1499. Action cannot be maintained for doTver, Such an action cannot be maintained, in a case where an action for dower may be maintained, as prescribed in article third of this title. The remedy for dower is provided by article 3 of title i, of chapter XIV of the Code, § 1 596-1625, and provisions of that article supersede 2 R. S., § 2, allowing ejectment for dower. Sub. 3. When Action Cannot be Maintained. Ejectment cannot be inaintained by a party other than the people unless the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty ACTION TO RECOVER REAL PROPERTY (EJECTMENT). II Art. 3. When the Action Will Not Lie. years before the commencement of the action. Code, § 365. It is held that this limitation appHes only to cases where prior to the Code the remedies sought were administered in a court of law. Hubbell v. Sibley, 50 N. Y. 468, affirming 5 Lans. 51 ; Miner V. Beeknian, 50 N. Y. 337, reversing 1 1 Abb. N. S. i, 42 How. 33. In an action to recover possession of lands on the seashore where the plaintiff does not trace his title to the original patentee nor show possession in himself or his grantors, he cannot recover. The mere payment of taxes, claim of title and assertion of owner- ship even if made upon the land, will not show actual possession which raises a presumption of title sufficient to maintain the action. Greenlcaf v. Brooklyn, etc. R. R. Co. 141 N. Y. 395, 57 St. Rep. 613. The fact that plaintiff in ejectment claimed under a deed more than thirty years old, does not change the rule requiring proof of the title or possession of the grantor in such case. McClellan v. Zzvingli, 24 Supp. 371, 53 St. Rep. 751. Where a will confers a power of sale on the executor and gives the proceeds to persons named therein, the executor takes no title to the real estate and cannot maintain ejectment. Smith v. Chase, 90 Hun, 99, 35 N. Y. Supp. 615, 70 St. Rep. 411. An action of ejectment cannot be maintained by one who has, at most, an equitable title to land arising out of an executory contract for its purchase. Bennett v. Gray, 92 Hun, 86, 36 N. Y. Supp. 372, 71 St. Rep. 142. One claiming under a conveyance, in form a deed but in fact a mortgage, cannot maintain ejectment against the grantor or any other person. SJiattuck v. Bascom, 105 N. Y. 39. Ejectment will not lie for incorporeal hereditaments or a mere easement, as a right to flow land. Wilklozv v. Lane, 37 Barb. 244. Nor against one who erects a gutter on his own premises project- ing over his neighbor's land. Aiken v. Beneelict, 39 Barb. 400. Nor for a projecting cornice. Vrooman v. Jackson, 6 Hun, 326 ; Brady v. Hennion, 8 Bosw. 528. For the rule that the owner of the land on which a tree stands is the owner of the entire tree notwithstanding some of its branches overhang the land of another, see Hoffman v. Arm- strong, 48 N. Y. 201. It will not lie for things existing merely in grant, not capable of being delivered in execution. Northern Turnpike Co. v. Smith, 15 Barb. 355. It is said to be doubtful 12 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 3. When the Action Will Not Lie. whether the action will lie to recover land covered by a party wall ; in any event the only interest to be recovered would be the fee subject to the easement. Rogers v. SinsJicimcr, 50 N. Y. 646 ; Vroonian v. Jackson, 6 Hun, 326 ; Kurkel v. Haley, 47 How. 75. It does not lie for a right of way. Rcdfield v. Utica & R. R. Co. 25 Barb. 54. Ejectment does not lie against a municipal corporation for land used as a public street where it is not claimed the owner had no private right ; as it is not in the occupancy of the corporation, it only has an easement. Cowenlioven v. City of Brooklyn, 38 Barb. 9. Ejectment will not lie to determine the right to the use of piers, etc. Mayor v. N. S. S. Island Ferry Co. 55 How. 154. Nor to determine the right to wharfage. Mayors. Mabie, 13 N. Y. 151. Nor can it be used to remove a cloud on title. Pixlcy v. Rockzvell, i Sheld. 267. Title to office of trustee of a religious corporation cannot be decided in an action of ejectment. Concord Society v. Stanton, 38 Hun, I. The right to recover pos.session of lands for non-payment of rent reserved cannot be enforced by ejectment unless the right of re-entry is reserved. Van Rejisselaer v. Jeivett, 2 N. Y. 141. The State cannot maintain an action to recover real estate be- longing to a municipality, the possession of which has been wrongfully acquired or is wrongfully withheld. People v. N. V. & Manhattan Branch R. R. Co. 84 N. Y. 565 ; affirming 22 Hun, 95. A grant of a right to erect buildings on land without defining where, or the space to be occupied, is not sufficiently definite to enable a lessee to maintain ejectment without an actual entry and location. Jackson v. May, 16 Johns. 184. Where a municipal corporation acquires title to land for a public purpose, the former owner cannot maintain ejectment on the ground that it has been diverted. Stucet v. Buffalo, N. Y. & P. R. R. Co. 79 N. Y. 293 ; affirming 13 Hun, 643. Where the defendant has acquired title to the property in ques- tion by eminent domain pending the action, ejectment cannot be maintained, and a judgment that the plaintiff recover possession of the land after the defendant's corporate existence terminates, is erroneous. Jndge v. N. V. C. etc. R. R. Co. 56 Hun, 60 ; S. C. 28 St. Rep. 475, 9 N. Y. Supp. 158. One who holds an absolute record title, but only as security for a debt, cannot, after the debt is paid, maintain ejectment. Sahler v. Signer, 37 Barb. 329. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 1 3 Art. 4. By Whom the Action Can be Maintained. Nor will the action lie when the title rests on an assignment made as security for a debt. Murray v. Walker, 31 N. Y. 399. One who takes as security an assignment of a contract of purchase can- not, on default, maintain ejectment against his assignors. Camp- bell V. Szuan, 48 Barb. 109. One having a naked contract to pur- chase, which is silent on the subject of possession, cannot maintain ejectment. Kellogg v. Kellogg, 6 Barb. 116. One who, at the request of the purchaser, advances part of the purchase money, and as security for its repayment, takes an absolute conveyance of the land from the vendor, the purchaser taking possession and occupying the land as his own and making payments on account of the money advanced, is a mere mortgagee, and cannot main- tain ejectment against such purchaser until he has first foreclosed his equity of redemption. Carr v. Carr, 4 Lans. 314, affirmed, 52 N. Y. 251. A recovery in ejectment for land taken by a municipal corpora- tion for a street, cannot be had where the evidence shows the proceedings were regular and the possession an exercise of dominion by the defendant lawfully. Binghaniton Opera House Co. V. City of Binghamton, 88 Hun, 620, 34 Supp. 421, 68 St. Rep. 252. Where the terms of an agreement of sale have been fully com- plied with, the vendor cannot maintain ejectment against the grantees of the purchaser. House v. Howell, 6 N. Y, Supp. 799. A person who enters into the possession of land under a con- tract to purchase it cannot without surrendering such possession attack or dispute the title of his vendor. Rhoades v. Freeman, 9 App. Div. 20. ARTICLE IV. Bv Whom the Action Can be Maintained, §§ 1500, 1501, 1680. Sub. I. One or more joint tenants. § 1500. 2. gr.a.ntee of lands held adversely. § i5oi. 3. Persons vested with right to immediate possession. 4. Reversioner may bring action after tenant's default. § 1680. Sub. I. One or More Joint Tenants, g ^500. § 1500. Separate action by joint tenant or tenant in common. Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an 1 14 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 4. By Whom the Action Can be Maintained. action, to recover his or their undivided shares in the property, in any case where such an action might be maintained by all. Section 1 500 does not apply to property bought with partner- ship funds where there has been no accounting and where the rights of the parties to the real estate have not been determined. Eisner v. Eisner, 5 App. Div. 117. This provision is new and designed to settle conflicting deci- sions on the subject. The authorities, before its enactnaent, must be considered in the light of this section as it now stands. Ten- ants in common may bring a joint action in ejectment. Vander- bnrj V. Bradt, 2 Caines, 169; Cole v. Irvine, 6 Hill, 634; Mal- colm V. Rogers, 5 Cow. 188. In ejectment for breach of a condi- tion subsequent, all the original grantors or their heirs should join. Cook v. St. PauVs CJmrch, 5 Hun, 293 ; affirmed, Gj N. Y, 594- Ejectment for property belonging to a firm should be brought in the name of all the persons in whom the legal title is vested. Sedgwick & Wait on Titles to Land, § 221. One of the six heirs may maintain an action of ejectment to recover an undivided sixth. Creger v. MeLaury, 41 N. Y. 219; afifirming 51 Barb. 642; Lord SoutJuivipton v. Sample, i Johns. Cas. 231. In eject- ment for lands held in common, it is not necessary that all the tenants in common should unite in the action. Kellogg v. Kel- logg, 6 Barb. 116. But it was held, before the present Code, that where there are several tenants in common, a joint action of eject- ment could not be maintained by two or more less than the whole number ; they must all join or bring separate actions. If one or more refused to join they must be made defendants. Hasbrouck V. Bunce, 62 N. Y. 475. There cannot properly be joined several plaintiffs claiming under distinct titles for distinct interests. Peo- ple, ex. rel., v. Mayor, 10 Abb. 1 1 1. Two persons, each of whom claims the whole of a piece of land by a title hostile, cannot unite as plaintiffs in ejectment, against a third party in possession, and set forth the title of each plaintiff in a separate count. Hiibbel v. Lerch, 58 N. Y. 237. One tenant in common cannot maintain ejectment against his co-tenant without proof of actual ouster, or some act amounting to a total denial of his right. Sharp v. In- graham, 4 Hill, 1 16 ; Edzvards v. Bishops 4 N. Y. 61. It is suffi- cient if the possession is adverse and exclusive. Clason v. Rankin, i Duer, 337 ; Church of North Greigv. Johnson, 66 Barb. ACTIOxN TO RECOVER REAL PROPERTY (EJECTMENT). I 5 Art. 4. By Whom the Action Can be Maintained. 1 19. But heirs obtaining exclusive possession from their ancestor cannot set up adverse possession against co-heirs. Phelan v. Kelly, 25 Wend. 389. To estabHsh an adverse possession by one tenant in common, such as will affect the ouster of his co-tenant, notice in fact to the latter, of the adverse claim, is required, or unequivocal acts, open and public, making the possession so visible and hostile, exclusive and notorious, that notice may fairly be presumed. Culver v. Rhodes, 87 N. Y. 348. This was an action of partition, but the principle is discussed, and the following authorities collated and commented on : Florence v. Hopkins, 46 N. Y. 182 ; Clapp v. BromagJiani, Q) Cow. 530; Clark v. Crego, 47 Barb. 617; Phelan V. Kelly, 25 Wend. 395 ; Grim v. Dyar, 3 Duer, 354; Smith v. Biirtis, 9 Johns. 174; Jackson v. Brink, 5 Cow. 483 ; Jackson v. Tibbits, 9 Cow. 241 ; Miller v. Piatt, 5 Duer, 272 ; Siglar v. Van Riper, 10 Wend. 419. Where one co-tenant is in actual possession of the premises and has in various ways persisted in asserting title to the whole premi- ses and the right to possession, exclusive of the other, this will entitle the co-tenant to maintain ejectment. Whiteman v. Hyland, 40 St. Rep. 575. See § 368, Code, as to what constitutes adverse possession as between co-tenants. Sub. 2. Grantee of Lands held Adversely. § 1501. § 1501. [Am'd. 1882. J Grantee of lands held adversely may maintain action. Such an action may be maintained by a grantee, his heir or devisee, in the name of the grantor, or his heir, where the conveyance, under which he claims, is void because the property conveyed was held adversely to the grantor. The plaintiff must be allowed to prove the facts to bring the case within this section. In such an action a judgment against the plaintiff shall not award costs to the defendant; but where the defendant is entitled to costs as prescril^ed in section three thousand two hundred and twenty-nine of this act, they may be taxed, and the person who maintained the action in the plaintiff's name may be com- pelled to pay the same as prescribed in section three thousand two hundred and forty-seven of this act. Note to 30 Abb. N. C. at page 175, calls attention to the origin and necessity for this section. Under the Revised Statutes, a deed is invalid which is made while the land is held adversely to the grantor. This resulted in a rule that an assignee of a right of 1 6 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 4. By Whom the Action Can be Maintained. action could sue at law only in the name of his assignor, and so far as related to the right of a grantee to sue under such circum- stances, the section of the Code providing that all actions must be brought in the name of the real party in interest was not abrogated. This section only provides a remedy, it does not make a deed valid or change the statute in that regard. Dazvlcy v. Brown, 4 St. Rep. 406. In an action brought under this section all of the grantors in the void deed must be joined as plaintiffs. It seems that the wife of the grantor must be joined in an action by the grantee in such case. Crowley v. Murphy, 11 Misc. 579. In case of deed of land held adversely under an agreement in pursuance of which the deed was given, the grantee may bring suit in the name of his grantor against those holding adversely, and aeainst others than those as to whom the deed is void, in his own name. Cormvell v. Clement, 87 Hun, 50, 67 St. Rep. 482, 33 Supp. 866. As to what constitutes adverse possession under the statute, see Dazvley v. Broivn, 21 Alb. L. J. 134; HiginbotJiam v. Stoddard, 72 N. Y. 94 ; Matter of Department of Public Parks, 73 N. Y. 560. The authorities, under the Revised Statutes and the old Code of Procedure, held that the grantor, in a conveyance of premi- ses, held adversely, could maintain ejectment, notwithstanding such deed, and that a recovery by him would enure to the benefit of his grantee, such deed being valid against all the world except the person holding adversely. Jackson v. Vredenbiirgh, i Johns. 159 ; Williams v. Jackson, 5 Johns. 489 ; Livingston v. Proseus, 2 Hill, 526 ; Hamilton v. Wright, 37 N. Y. 502. See, also, for deci- sions under section 1 1 1 of Code of Procedure, for which this is a substitute, Lozvber v. Kelly, 9 Bosw. 494 ; Towle v. Smith, 2 Robt. 489. The grantee of land held adversely to the grantor cannot main- tain ejectment in his own name. Lozvber v. Kelly, 9 Bosw. 494, supra ; De Silva v. Flynn, 9 Civ. Pro. 426. Such an action does not abate by the death of the grantee. It may be continued by his de- visees. Ward V. Reynolds, 2^ Hun, 385. It is no defence in an action of ejectment brought for the benefit of grantees in the name of the grantor, that the deed to the grantees was given in violation of the .statute against sale of lands held adversely. If the deed is void, the grantor's title remains valid and efTectual, ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 1 7 Art. 4. By Whom the Action Can be Maintained. and he may rely upon it against trespassers and occupants with- out title. If it be only void as to the defendants, and good as to the other parties, the Code allows an action in the name of the grantor for the benefit of the grantee, and in either event the grantor's title can be asserted and established. Chamberlain v. Taylor, 92 N. Y. 348, reversing 26 Hun, 601. The section adds nothing to the right of the grantor, and where the grantor did not have such an estate in the lands as to maintain the action, it can- not be maintained for the benefit of his grantee. Chamberlain v. Taylor, 105 N. Y. 185. Where a deed from several tenants in common is void by reason of adverse possession in a third person claiming under a title hostile to the grantors, the grantee under the void deed may maintain an action of ejectment in the name of his grantors, and he is authorized to use their names without special consent. Hasbrouek v. Bunce, 62 N. Y. 475 ; followed Wardv. Reynolds, 25 Hun, 385. As to when action is properly brought in name of grantor, see Van Voorhis v. Kelly, 31 Hun, 293. A conveyance made under an order of the court is not within the statute. Christie v. Gage, 71 N. Y. 189. The right to bring the action in the name of the grantor was formerly limited to the first grantee, and did not extend to a remote grantee of the premises, and the action must be brought in the name of the individual grantor bringing it, and plaintiff mu.st stand or fall by his title. Smith v. Long, 12 Abb. N. C. 113. But see language of section as it now stands. Where a conveyance is made of land which, owing to a dis- puted boundary line, is not at the time of conveyance in the actual possession of the grantor, an action to recover the disputed portion may be maintained by the grantee in his own name and this section is not applicable. Dansiger M.Boyd, 120 N. Y. 628, 30 St. Rep. 889, affirming 52 N. Y. Sup. 537, 12 St. Rep. 64. Where defendants admit that at the time of the conveyance of the land they claimed adverse possession, it is proper the action should be commenced in the name of the grantors for the benefit of their grantee. Doherty v. Mat sell, 119 N. Y. 646. A deed of lands which at the time are held adversely by an- other person, is only inoperative as to the person holding ad- versely and those claiming under him ; it is good as between the parties to it, and the grantor has no right of action to redeem from the foreclosure of a prior mortgage of which he was not [Special Actions — 2.] 1 8 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 4. By Whom the Action Can be Maintained. made a party. Johnson v. Snell, 34 St. Rep. 177, citing Pcarce v. Moore, 114 N. Y. 256, 23 St. Rep. 196, which distinguishes CJiain- bcrlain v. Taylor, 92 N. Y. 348. Where, after an assignment in bankruptcy, the assignor's inter, est as a tenant in common is set off to him in an action of parti- tion to which the assignee is not a party, a subsequent purchaser at a sale by the assignee of the assignor's undivided interest, can- not maintain ejectment for the benefit of his grantee against the grantee of the assignor for the recovery of a particular parcel. Smith V. WJiittemore, 15 Week. Dig. 70. The amendment of 1882 relative to costs, renders obsolete Hamilton v. Wright, 37 N. Y. 502. Sub. 3. Persons Vested with Right to I:vimediate Possession. It is said that " as a general rule, any person owning an "estate in lands in fee, for life, or for years, having a present right of entry, or any person vested with a right to the immediate posses- sion incident to some corporeal estate or interest in lands, may maintain an action in the nature of ejectment." Sedgwick & Wait on Titles to Land, p. 92. The people may maintain eject- ment. Jackson, ex. dem. Miller, v. Winslozv, 2 Johns. 81 ; People V. Maiiran, 5 Den. 389 ; People v. Rector, etc. Trinity Church, 22 N. Y. 44 ; People v. Va)i Rensselaer, 9 N. Y. 3 19 ; People v. Denison, 17 Wend. 312 ; People v. Conkliji, 2 Hill, 67 ; People v. Livingston, 8 Barb. 253. It was held before the Code of Civil Procedure that a guardian in socage alone could maintain ejectment on behalf of an infant. Byrne v. Van Hoesen, 5 Johns. 66 ; Holmes v. Seeley, 17 Wend. 75 ; see Seaton v. Davis, i T. & C. 91 ; Cagger v. Lans- ing, 64 N. Y. 417. Section 1686, however, now provides that the infant may bring any action provided for by the title of which it is a part, which includes the provisions relating to ejectment. See Carr v. Huff, 10 N. Y. Supp. 361 ; 32 St. Rep. 26 ; 57 Hun, 20. The committee of a lunatic cannot maintain ejectment. Petrie v. Shoemaker, 24 Wend. 85 ; McKillip v. McKillip, 8 Barb. 552 ; Bur- nett V. Bookstaver, 10 Hun, 481 ; Lane w. Schemer horn, i Hill, 97. An executor may maintain ejectment for lands which were held by his testator for a term of years, as such term is a chattel real and assets to be administered by him ; Moshcr v. Yost, 33 Barb. 277 ; but he cannot maintain the action as to the fee. Van Rens- selaer V. Hayes, 5 Den. 477. ACTKJN TO RECOVER REAL PROPERTY (EJECTMENT). 19 Art. 4. By Whom the Action Can be Maintained. A ic'siid que trust, of a trust not prescribed by statute, may maintain this action. Van Dcuscii v. Trustees of Presbyterian Con- gregation, 3 Keyes, 550. See, however, Clark v. Crego, 47 Barb. 599, affirmed, 51 N. Y. 646. Where lands have been devised to trustees with power of conversion and to apply the income, the trustees may maintain ejectment. McLean v. MeDonald, 2 Barb. 534. But not in case where the deed of trust does not create a valid trust or convey the legal title. Heerinans v. Robertson, 3 Hun, 464, affirmed, 64 N. Y. 332. Where the demise to executors does not authorize them to receive the rents and profits, nor hence, to convey the legal title, they cannot maintain ejectment. Cham- berlain v. Taylor, 7 St. Rep. 517; s. c. 105 N. Y. 185. Where a purchaser on execution sale dies previous to the giving of the deed which goes to his personal representatives, they may bring ejectment without joining the heirs. Reynolds v. Darling, 42 Barb. 418. A tenant b}- the curtesy may maintain the action. Jackson v. Leek, 19 Wend. 339. As to the right of receiver to maintain the action, see Porter v. Williams, 9 N. Y. 142 ; Cliautauqiia Bank v. Risley, 19N. Y. 374; Scott v. Elmore, 10 Hun, 68 ; Wingv. Disse, 15 Hun, 190; and §§ 2467, 2468, Code of Civil Procedure. The owner of a conditional fee may maintain ejectment. Olmsted v. Harvey, i Barb. 102. Loan commissioners can remove by eject- ment a party who holds over after notice for them to quit. Candee v. Hayzvard, 37 N. Y. 653. The owner of land appropriated to public use may maintain ejectment against a permanent encumbrancer. Lozierw. N. Y. C. R. R. Co. 42 Barb. 465. A purchaser at foreclosure sale is entitled to the action. Clute v. J'oris, 31 Barb. 511. A purchaser at a tax sale who is in actual occupation, it is said, can maintain the action against an intruder, who is a mere trespasser, even though the sale is irregular and his deed void. Thompson v. BnrJians, 61 Barb. 260. Whether a mortgagee in possession after default in a loan commissioner's mortgage may maintain ejectment, see Olni- sted V. Elder, 5 N. Y. 144 ; Pellw Ulmar, 18 N. Y. 139. A landlord may maintain ejectment against any one in posses- sion after the determination of the particular estate by which he gained it, without notice to quit. Livingston v. Tanner, 14 N. Y. 64; Smithv. Little field, '^\ N. Y. 539. And where a tenant holds over after the expiration of his term, the landlord may, at his elec- 20 ACTION TO RECOVER REAL PROPERTY (EJECTMENT.) Art. 4. By Whom the Action Can be Maintained. tion, treat him as a tenant from year to year, or as a trespasser, and maintain ejectment. ScJmyler v. S}nilh, 51 N. Y. 309. The grantor in a deed, on condition that no intoxicating hquors shall be manufactured or sold on the premises conveyed, the convey- ance to be void in case of a breach, can maintain ejectment with- out demand of possession. P/uml?v. T^/dds, 41 N.Y. 442. Where lands are conveyed subject to certain conditions reserving a right of re-entry, the original grantor or his heirs can maintain eject- ment. Jackson V Topping, i Wend. 388 ; Nicoll v. N. V. & Erie R. R. Co. 12 N. Y. 121. In such a case all the original grantors or their heirs must join as plaintiffs. Cook v. Wardens., etc. of St. PauVs Church, 5 Hun, 293. Where real estate is devised to executors as such, although they are also named in the will as trustees, they may, as executors, maintain ejectment. Landon v. TownsJiend, 14 Supp. 522, 38 St. Rep. 714. The action lies by the grantor where the condition is that on violation of covenants, as not to erect a certain structure, the land reverts to the grantor. Gilbert v. Petelcr, 38 N. Y. 165. The action will lie for lands admeasured as dower. Borst v. Griffin, 9 Wend. 307 ; Oothoiit v. Ledings, 1 5 Wend. 410 ; Ellicott v. Hosier, 7 N. Y. 201. One in possession of land under a contract of pur- chase may maintain the action against a stranger to the title, who wrongfully enters and withholds possession. MurpJiy v. Loomis, 26 Hun, 659. A contract dated at a future day, leasing lands for a term com- mencing at such day, gives the lessee, when the day arrives, right of possession and a right to maintain ejectment against a stranger wrongfully withholding. Trnll \. Granger, 8 N. Y. 115. Where a grantor conveys, excepting a portion included in a highway, he may maintain ejectment against the parties for encroaching upon it or exclusively occupying it. Etz v. Daily, 20 Barb. 32. The action lies by the owner of the fee against one who exclusively holds part of a highway. Brown v. Galley, Hill & Den. Sup. 308. The owner of a fee may maintain ejectment against a person hav- ing a private right of way over it, where such person claims entire possession. Strong v. City of Brooklyn, 68 N. Y. i. Where the deed conveying premises to a religious corporation, reserved the right to build a basement story to be used solely for the purposes of a school, Jield that ejectment lay in favor of the ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 4. By Whom the Action can be Maintained. corporation against persons using the basement for other liian school purposes. The judgment should award possession subject to the easement. Reformed Church v. Schoolcraft, 65 N. Y. 135. A purchaser at sheriff sale of the interest of a mortgagor may recover against the latter in ejectment. Jackson v. Davis, iS How. 7. One who has been in possession for several years under color of title may recover against a mere intruder. Jackson v. Harder, 4 Johns. 202. The lessee of a married woman may maintain ejectment against her husband. Vaiidervoort w. Gould, 3 Trans. App. 357. In an action to recover property, the alleged separate estate of the wife, she must sue alone without her hus- band. Hillinan v. Hillnian, 14 How. 456 ; Dauby v. Callaghan, 16 N. Y. 71. See § 450 of Code. The wife may sue the hus- band in ejectment to recover the possession of her property wrongfully detained by him. Woodv. Wood, 83 N. Y. 575, affirm- ing 18 Hun, 350; Berdellv. Parkhurst, 19 Hun, 358. A vendor under contract for sale of lands may maintain eject- ment against a vendee in possession on the failure to comply with the contract, and no demand or notice to quit need be given. Pratt v. Peckhani, 44 Hun, 247. The endowed mother of an infant, who owns real estate as general guardian of the infant, with the rights, powers and duties of a guardian 1)1 socage has the right to the possession of such real estate, and it is her duty to obtain such possession, and she may bring suit therefor, and employ counsel, and agree as to his com- pensation, lu re Hynes, 105 N. Y. 560. The devisee of an inter- est in a mortgage cannot maintain ejectment. Beal v. Miller, i Hun, 390. Where, in ejectment by a lessee, his title expires durine the action, he is entitled to recover the value of the lease from the time of unlawful entry, for the balance of his term. IVoodhullv. Rosenthal, 61 N. Y. 382. One who has been put in possession of lands and is entitled to possession under a contract of sale, may maintain ejectment against a stranger who wrongfully enters upon such lands, and withholds possession thereof. Murphy v. Looinis, 26 Hun, 659. The owner of the fee can maintain an action of ejectment in case of ouster, where the lands are subject to the right of the pub- lic to use as a highway. Westlake v. Kock, 8 N. Y. Supp. 665 ; s. c. 29 St. Rep. 283. As to the right of the Seneca Indians to maintain ejectment 22 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 5. What is Necessary to Entitle Plaintiff to Recover. with reference to their reservation, see Seneca Nation v. Christy, 49 Hun, 524, 18 St. Rep. 881. As to the right of the owner of land, bordering on tide water or navigable water, to maintain ejectment, see Sissoti v. Cuin- mings, 35 Hun, 22 ; s. c. 106 N. Y. 56, 8 St. Rep. 573. As to when a vendor can maintain ejectment against a vendee in possession, who has failed to comply with the terms of the con- tract, see Pratt v. Peckhani. 44 Hun, 247. Sub. 4. Reversioner May Bring Action after Tenant's De- fault. ^ 1680. Reversioner, etc., may bring action after tenant's default. Where a tenant for life, or for a term of years, suffers judgment to be taken against him, by consent or by default, in an action of ejectment, or an action for dower, the heir or person owning the reversion or remainder, may, after the determination of the particular estate, maintain an action of ejectment to recover the property. This section is found under provisions applicable to two or more of the actions specified in this title in chapter twelve, but as it provides only for the action of ejectment it is inserted here as well as in its proper place. ARTICLE V. What is Necessary to Entitle Plaintiff to Recover. Sub. I. Plaintiff must recover o.\ the strength of his own title. 2. When possession gives presumption of title. Sub. I. Plaintiff Must Recover on the Strength of his OWN Title. Plaintiff must recover on the strength of his own title. He cannot take anything from defects in defendant's title. Roggcn v. Avery, 63 Barb. 65 ; Richardson v. Piilver, 6^, Barb. 67 ; Henry V. Reichert, 22 Hun, 394; Wallace v. Szvinton, 64 N. Y. 188; Bowers v. Arnoux, 33 Super. Ct. 530; Lamont v. Cheshire, 65 N. Y. 30 ; Doherty v. Matsell, \ i Civ. Pro. R. 392 ; Brady v. Hennion, 8 Bosw. 528; Chamberlain v. Taylor, 105 N. Y. 185; Buttery v. R., W. & O. R. R. Co. 14 St. Rep. 131. Plaintiff must depend on the strength of his own title, not on the weakness of his adversary, and must show his right to imme- diate possession, and that he was seized or possessed of the premi- ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 23 Art. 5. What is Necessary to Entitle Plaintiff to Recover. ses within twenty years before the commencement of the action. He must show possession under his title, but such possession will be presumed. Dolurty v. Matseil, 3 St. Rep. 517. The rule that plaintiff must recover upon the strength of his own title, and that he can take nothing from defects in defendant's title, is reiterated in Roberts v. Baiimgartcii, 1 10 N. Y. 380; s. c. 18 St. Rep. 162, afifirming 51 N. Y. Supr. 482 ; see, also, Dohcrty v. Matscll, 16 St. Rep. 593 ; Finclitc v. Sinnott, 24 St. Rep. 28. Plaintiff must recover upon the strength of his own title, not upon the weakness of that of the defendant ; but he measures his title with that of the defendant, and if it is better in respect of his right of possession he prevails because of its sufficient strength. McRobcrts v. Bergman, 132 N. Y. 73,43 St. Rep. 559 ; Toxunshend V. TJiompson, 18 Supp. 870, 46 St. Rep. 847; Snyder \. Church, 70 Hun, 428, 53 St. Rep. 674, 24 Supp. 337. An action to recover possession of real property may be main- tained by one ha\'ing only an equitable title, where all the parties are brought before the court. Boyd v. Boyd, 12 Misc. 119, 33 Supp. 74, 66 St. Rep. 731. But it is held that plaintiff in eject- ment can recover only on proof of his legal title. Mangain v. President of Sing Sing, 86 Hun, 604, 33 Supp. 843, 6'] St. Rep. 454; Goodhart v. Street. 12 Misc. 360, 33 Supp. 687, 6-j St. Rep. 300. The possessor of lands can be evicted therefrom by one claim- ing them only by proof, not only of title in the claimant, but of paramount title. Morey v. Village of Troy, 12 Week. Dig. 55. A right of possession in prcpsenti is necessary to be shown. Bryan v. Butts, 27 Barb. 503 ; People, ex rel., v. Mayor, 10 Abb. Ill ; Me Lean v. McDonald, 2 Barb. 534; Hiinter v. Trustees of Sandy Hill, 6 Hill, 407 ; Trull v. Granger, 8 N. Y. 115; Doherty V. Matseil, 1 1 Civ. Pro. R. 392. Plaintiff must not only establish the right to possession in himself, but show the defendants in possession, or claiming title, when the action was commenced. People V. Van Rensselaer, 9 N. Y. 291. The burden is upon the plaintiff of showing either a prior actual possession, or paramount legal title, and right to immediate pos- session. Layman v. Whiting, 20 Barb. 559; Bryan v. Butts, 27 Barb. 503; Bartow v. Draper, 5 Duer, 130; Pierce v. Tuttle, 53 Barb. 155. If plaintiff has no title the title of defendant is not important. Szveet v. Buffalo, N. Y. & P. R. R. Co. 79 N. Y. 293. 24 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 5. What is Necessary to Entitle Plaintiff to Recover. But when plaintiff shows prior possession, a defendant who enters as an intruder without right cannot defend, but where the lands are vacant he may defend, unless title is shown by plaintiff. TJiompson v. Burhans, 61 N. Y. 52, reversing 61 Barb. 260, and 79 N. Y. 93, reversing 15 Hun, 580. As against a defendant who is in possession under a title which is invalid, plaintiff may recover upon proof of prior occupation and use, without proof of paper title in himself and ouster by defendant. Hopkins v. Mason, 42 How. 115. But the general rule is as above, that proof of title in plaintiff must be by posses- sion or paper title. Lane v. Gould, 10 Barb. 254 ; Safford v. Hynds, 39 Barb. 625; Cliitev. F^;7>, 31 Barb. 511; Downing \. Miller, 33 Barb. 386. Sub. 2. When Possession Gives Presumption of Title. If plaintiff shows legal title, he will be presumed to have been in possession within the time required by law, unless twenty years' adverse possession is shown. Porter v. MeGratk, 41 Super. Ct. 84; DoJiertyv. Quinn, 3 St. Rep. 517. A prior possession under claim of right prevails over a subse- quent possession without lawful title, where no proof of title is made on either side. SviitJi v. Lorillard, 10 Johns. 339 ; Jackson V. RigJitmyre, 16 Johns. 314. Proof of a patent from the State, and mesne conveyances to himself, is prima facie evidence sufficient to entitle plaintiff to recover, where the premises are unoccupied. Becker v. Howard^ 47 How. 423 ; reversed, 4 Hun, 359, and affirmed, 66 N. Y. 5. Where one has color of title by deed to a farm or lot, possession of part is deemed possession of the whole, but this is not appli- cable where the land is a large tract not capable of being used together. Thompsoii v. BiirJians, 61 N. Y. 52. To recover in ejectment under a purchase at a sheriff's sale, on a judgment against defendant, the judgment and judgment-roll must be shown, and that defendant was in possession, and the title acquired by the sheriff's sale. Tozunshendv. lVesso?i, 4 Duer, 342 ; Dickenson v. Smith, 25 Barb. 103 ; Smith v. Colvin, 17 Barb. 157; Kclloggx. Kellogg, 6 Barb. 1 16. Notice to quit, or demand of possession, is not necessary, unless the relation of landlord and tenant has existed. Hotalingv. Hotaling, ^"j Barb. 163 ; Wood v. Wood, 18 Hun, 350; affirmed, 83 N. Y. 575 ; Jackson v. Tyler, 2 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 25 Art. 5. What is Necessary to Entitle Plaintiff to Recover. Johns. 444 ; Jackson v. Deyo, 3 Johns. 422 ; Jackso7i v. Aldrich, 13 Johns. 106. If neither party can show title, the one claiming under the first possessor may recover ; facts insufficient to establish an adverse possession may be sufificient to support ejectment against a third person. Hunter v. Siarm, 26 Hun, 529. An undisturbed possession for thirty-eight years is such title as will support ejectment against one who had recovered in a former ejectment by default, and turned the plaintiff out of possession, and this, though the plaintiff's possession did not correspond with the paper title. Wrigk' v. Dieffendorf, 3 Johns. 269. And a prior possession for less than twenty years will support ejectment against one who shows no lawful title. Smith v. Lorillard, 10 Johns. 338; Hopkins V.Mason, 61 ^3.rh.4.6g; Rodic v. Sedgwick, ^^^V>2ix\i. 319. It is said that a mere possession, without claim of title, ^\•ill not support ejectment, i Caines, 190, n. But see Murray v. Hazen, 2 Johns. 22 ; Murray v. Demi, 5 Cow. 200 ; Dey v. Alver- son, 9 Wend. 222 ; Whitney v. Wright, 15 Wend. 171 ; Holmes v. Seeley, ij Wend. 75. A possession for eight or ten years, under color of title, will support ejectment against a mere intruder. Duncan v. Harder, 4 Johns. 202. But a mere possessor}- title which has been abandoned will not support the action ; Livingst07i V. Walker, 7 Cow. 637; Whitney v. Wright, 15 Wend. 171 ; and where possession is relied on as the basis of the action, it must be clearly and unequivocally proved. Ludlozu v. Myers, 3 Johns. 388. Defendant's admission that he went into possession under plaintiffs, will enable plaintiff to recover. SagoJiarie v. Dobbin, 3 Johns. 223. When neither party can prove a legal title, the party showing himself, or those under whom he claims, in prior possession, can recover against a mere intruder, or one whose title is founded on a later possession. Hunter v. Star in, 26 Hun, 529. When plain- tiff shows an adverse possession for twenty years he is entitled to recover even against a defendant whose possession for a less period is lawful ; Jackson v. Dieffendorf, 3 Johns. 269 ; Jackson v. Oltz, 8 Wend. 440 ; but adverse possession for a less period than twenty years does not, of itself, authorize a recovery against a defendant lawfully in possession. Jackson v. Rightmyre, 16 Johns. 314; Grew V. Swift, 46 N. Y. 204. Plaintiff in order to recover mu.st show an immediate right to possession. Where, therefore, the defendant shows a possession 26 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 6. Who May be Defendants and Who Must be Joined as such. founded upon the sale of the premises for a term of years, for an unpaid assessment, Jield that such possession was not adverse to but consistent with the plaintiff's ownership in fee and that plain- tiff could not maintain the action. Moore v. Tozvnshend, 54 Supr. Ct. 245 ; s. c. 10 St. Rep. 463. Possession of land \% prima facie evidence of title and sufficient against the defendant, who is unable to show a better title. The benefit of such a possession is not lost to the possessor, if he leaves the land temporarily vacant, and a city as well as an individual may obtain title by adverse possession, and such title cannot be questioned by one who occupies the attitude of a mere subsequent intruder without any title ; the fact that he purchased the same from persons who also had no title, in no way fortifies his posi- tion. Mayor, etc., of New York v. Carleton, 113 N. Y. 284. The same rule applies to the acquiring of title by the State. Eldridge v. City of Bingliamton, 120 N. Y. 309. As to what establishes possession under claim of title, so as to entitle the defendant to judgment, see Carletonv. Darcy^ 90 N. Y. 566. Where plaintiff deduced his title from a source conceded to be sufificient, and proved the possession of two intermediate grantors, it was held that v.-as sufificient to cast upon defendant the burden of establishing title by adverse possession. Arents v. Long Island R. R. Co. 89 Hun, 126, 69 St Rep. i, 34 Supp. 1085. Possession of land is always presumed to be in subordination to the true title and one who claims to have acquired title by adverse possession, must show that he or his predecessors in interest held the land in hostility to the true owner claiming title thereto. Doherty v. Mat sell, 119 N. Y. 646. ARTICLE VI. Who May be Defendants and Who Must be Joined as Such. §§ 1502, 1503. g 1502. Against whom action to be brought. Where the complaint demands judgment for the immediate possession of the property, if the property is actually occupied, the occupant thereof must be made defendant in the action. If it is not so occupied, the action must be brought against some person exercising acts of ownership thereupon, or claim- ing title thereto, or an interest therein, at the time of the commencement of the action. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 2/ Art. 6. Who May be Defendants and Who Must be Joined as Such. § 1503. Who may be joined as defendants. In either of the cases specified in the last section, any other person claiming title to, or the right to the possession of, the real property sought to be recov- ered, as landlord, remainderman, reversioner, or otherwise adversely to the plaintiff, may be joined as defendant in an action therefor. If the premises are actually occupied, the occupant must be made defendant. People v. Auibreckt, ii Abb. 97; Taylor v. Crane, 15 How. 358; Lucas v. JoJinson, 8 Barb. 244; Pidenv. Reynolds, 32 How. 353 ; Banyer v. Empie, 5 Hill, 48 ; Schuyler V. Marsh, 37 Barb. 350. It must be an occupation against the plaintiff. Strong n. City of Brooklyn, 68 N. Y. i. The words of section 1502 '' the occupant thereof" may be read as meaning an occupant and not all the occupants, and although plaintiff in ejectment may make every occupant a de- fendant, he is not required to do so and the defendant cannot object to the non-joinder of any person alleged to be in occupancy of a part of the premises when such joinder would not in any wise benefit the party sued or be necessary for the determination of his rights. Hennesey v. Paulsen, 147 N. Y. 255, 69 St. Rep. 539; affirming 12 Misc. 384, Cyj St. Rep. 343, 33 Supp. 638. If the plaintiff in the action of ejectment fails to make a tenant in occupation of the premises a party, bringing the action against the landlord only, and the latter joins issue without pleading the non-joinder of the tenant, by his omission to so plead he waives the defect of the non-joinder and as he is a proper party, the action must be tried upon the question of plaintiff's title and right to possession although the recovery of the land cannot be enforced as against the tenant's occupancy. Clason v. Baldwin, 129 N. Y. 183, 37 St. Rep. 213. In an action for the possession of real property, parties should not be brought in on a mere allegation by plaintiff that they have or claim some interest in the property accrued since suit brought, if they resist the application and deny the claim. Cagger v. Sholtes, 82 Hun, 378, 6^ St. Rep. 557, 31 Supp. 250. If the premises are not occupied, the action may be brought against one claiming adversely to plaintiff. Abeel \. ]'an Gelder, 36 N. Y. 5 13 ; Carter v. Hunt, 40 Barb. 89. The occupation must be actual. Allen v. Dunlap^ 42 Barb. 585. A church edifice used and occupied by a religious society is deemed to be occupied by the corporation and not by the trustees. Lucas v. John- 28 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 6. Who May be Defendants and Who Must be Joined as Such. son, 8 Barb. 244, supra. It is said in People v. Mayor of Nezv York, 28 Barb. 240, that if the premises are actually occupied by a tenant, the action must be against the tenant and not against the corpo- ration. A soldier of the United States in charge under his supe- rior ofificers, is not an actual occupant. People v. Ambreeht, 11 Abb. 97 ; affirmed 24 How. 610, n. If land is occupied, eject- ment must be against the person actually possessing it, though as a mere servant. But if no one lives on the land, and the servant tills it for his employer, the latter must be sued. Shaver v. Mc- Graiv, 12 Wend. 558. Ejectment for entering and unlawfully holding land will not lie against a person who is not in possession himself, or by his servant though he has given a lease of it and it is occupied by the lessee. CJiamplain, etc. R. R. Co. v. Valentine, 19 Barb. 484. A person not in possession of property, though claiming an interest therein, is not a necessary party. Van Bnreji V. Cockburn, 14 Barb. 118. Where the landlord stated, when the summons and complaint Avere served upon him, that he lived in and was in possession of the house, and, upon the faith of this, service was made on him, he is estopped from denying his actual possession. Finnegan v. Carraher, 47 N. Y. 493, affirming 61 Barb. 252. It was said that a railroad company which has its track on a street but w^hich does not occupy the whole of it is not an actual occupant. Redficld v. Utica, etc. R. R. Co. 25 Barb. 54. But it is also held that eject- ment lies against a railroad company for laying its rails over land dedicated by plaintiff to public use as a street and running its cars thereon. Carpenter v. O. & IV. R. R. Co. 24 N. Y. 655. The same rule is also held in Adams v. S. & C R. R. Co. 10 N. Y. 328, reversing 11 Barb. 414; Williams v. TV. Y. C. R. R. Co. 16 N. Y. 97 ; IVager v. T. & U. R. R. Co. 25 N. Y. 526. A railroad company that has laid a track over which trains pass, has such occupancy or possession as to authorize ejectment against it. It is substantially in the exclusive possession of the company. Gas Light Co. v. Rome, etc. R. R. Co. 1 1 Civ. Pro. R. 239. When brought against a person claiming title it must be upon something more than an idle declaration that he owns the land. Fosgaie v. Herkimer Mfg. Co. 12 N. Y. 580 ; Banyer v. Empie, 5 Hill, 48 ; Abeel v. Van Gelder, 36 N. Y. 513 ; Lucas v. JoJinson, 8 Barb. 244. It is sufficient that a party claims and defends the title of the tenant in possession. Abeel v. Van Gelder, ^fi N. Y. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 29 Art. 6. Who May be Defendants and Who Must be Joined as Such. 513 ; Fimtegan v. Carraher, 47 N. Y. 493. Ejectment lies against one who enters into possession with the assent of another under a contract to purchase, after default in payment of purchase money. Pierce v. Tuttle, 53 Barb. 155; Poivers v. Ingrahani, 3 Barb. 576. Where the defendant claims title under and by virtue of a deed executed to him as receiver by a corporation, by order of the court, the deed suf^ces to show title in defendant sufficient to maintain ejectment against him. The rule is reiterated that no person should be made defendant except the party in actual and exclusive possession. Schuyler v. Marsh, receiver, etc. 37 Barb. 350 ; citing Ensign v. Sherman, 14 How. 439 ; Waller v. Lockwood, 23 Barb. 328 ; Sanders v. Leary, 16 How. 308. It lies again.st a tenant for life holding over without notice to quit. Livingston v. Tanner, 14 N. Y. 64. It does not lie against a mortgagor in pos- session after default, nor against his assignee. Randall \. Raub, 2 Abb. 307 ; Bolto)i v. Breivster, 32 Barb. 389 ; St. John v. Bump- stead, 17 Barb. 100. It will lie in favor of the reversioner or per- son purchasing his interest on execution against the heirs of the life tenant holding over after his death. Nivis v. Sabine, 44 How. 252. It will not lie against one who has made improvements, relying on a parol agreement as to boundary line. Corkhill v. Landers, 44 Barb. 218. The action will lie against a corporation. Daterv. Troy, etc. Turnpike Co. 2 Hill, 629. An infant may be sued in ejectment. McCoon v. Smith, 3 Hill, 147. In Stewart v. Patrick, 68 N. Y. 450, it was held that where a husband went into possession, under claim of title in himself and wife as joint tenants, both were proper parties. She did not disclaim title when possession was demanded but refused to deliver possession. It was said by the court that she was properly joined as one claiming title and pos- session, and the action would have been defective had she been omitted as a party. But generally a married woman ought not to be joined with her husband when he is in possession. Rose x. Bell, 38 Barb. 25. When a party claims to own unoccupied premises and has con- tracted to sell them to others who are exercising acts of ownership over them, the plaintiff may elect to make such purchasers de- fendants. Edzvardsv. Tanner Fire Lns. Co. 2\ We.wd,^6y. When in an action against several defendants it appears they occupy, in severalty, distinct portions of the premises, he may elect against which he will proceed. Dillayev. Wilson, 43 Barb. 261 ; Fosgatc v. 30 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 6. Who May be Defendants and Who Must be Joined as Such. Herkimer, etc. Manuf. Co. 9 Barb. 287. Several occupants of a building, although occupying different portions, may be joined in an action of ejectment. Pcarce v. Ferris, 10 N. Y. 280. As to whether the action survives, see Mosely v. Mosely, 1 1 Abb. 105. As to the effect of change of occupancy pending suit, it appears that the cause of action cannot be transferred to the new occupant, and he cannot be substituted as a party. Mosely v. Albany & N. R. R. Co. 14 How. 71. When suit is brought against a tenant the landlord may be let in to defend. Shaver v. iJ/f(7r«w, 12 Wend. 558. See Stiles v. Jackson, \ Wend. T)16. To entitle a person to be admitted to defend, he must ordinarily show that a privity of interest existed between him and the defendant when the action commenced, and that the possession was then consistent with and connected with the possession of the latter, and liable to be divested or disturbed by a claim adverse to that possession. Jackson v. McEvoy, i Caines, 151. Tenants in com- mon of the defendant will not be admitted to defend unless they show that they are interested in the result of the suit. Jackson v. White, 2 Cow. 585. One who claims in opposition to the title of the defendant cannot be admitted as a co-defendant. Jackson v, Flint, 2 Cow. 594. Where infant remaindermen neither claim title to or the rig-ht to the possession of the land in controversy, nor do any act in hostility to plaintiff's title, they are not proper parties to an action of ejectment. Sisson v. Cunnnings, 8 St. Rep. 573 ; S. c. 106 N. Y. 56. In ejectment, persons who have claims against the property, nominal or real, analogous "to a lease by virtue of a tax title, are not proper parties. Pixley v. Rockwell, i Sheldon, 267. Mort- gagees being also purchasers under a subsequent foreclosure of their mortgage, may be joined with the tenant in possession under them, as defendants in ejectment, brought by one claiming under the mortgage, on the ground that the mortgage was void for usury. More v. Deyoe, 22 Hun, 208. A defendant, in an action of ejectment, is not entitled to have additional parties brought into the action by setting up an equit- able defence. Webster v. Bond, 9 Hun, 437. A person is properly made a party who is alleged to be in pos- session of part of the property under the other defendants. Bank v. Levinus, 5 Civ. Proc. 368. ACTION TO RECOVER REAL PROPERTY (EJECTMENT), 3 1 Art. 7. Production of Authority by Attorney. In an action of ejectment, a mortgagee applied to be made de- fendant on the ground of collusion between plaintiff and defend- ant to allow plaintiff to take judgment. Held, that the mort- gagee had no interest in the controversy and that the application was properly denied. Roberts v. Innuay, 51 Super. Ct. 531. Where husband and wife lived together, the premises conveyed to and which were paid for by the \\'ife, she is the occupant and the proper party to the action of ejectment, and such action can- not be maintained against the husband. When premises are actu- ally occupied, ejectment must be brought against the occupant, but such action cannot be maintained against a person wdio is not in occupation of premises in dispute and does not claim to be either the owner or entitled to possession thereof. Danihee v. Hyatt, 8 1 Hun, 238, 62 St. Rep. 663, 30 Supp. 707. In an action of ejectment, the answer alleged a defect of parties defendant in that one M. " was and now is an occupant of a part of the premises " as a tenant of one D. " who was and still is the legal owner and in possession of the whole of said premises and neither of said persons has been made party defendant herein ; " it was held that a demurrer to this defence should have been sus- tained. Henncssy v. Paulson, 147 N. Y. 257, affirming 12 Misc. 384- It seems that where land is occupied, no recovery can be had in ejectment for non-payment of rent unless brought against one who was the actual occupant when the action was begun. Bradt v. ChiircJi, 1 10 N. Y. 537, affirming 39 Hun, 262. ARTICLE VII. Production of Authority by Attorney, §§ 15 12, 15 13, 15 14. § 1512. Motion for plaintiffs attorney to produce his authority. A defendant, in an action to recover real property or the possession thereof, may, at any time before answering, upon an affidavit that evidence of the authority of the plaintiff's attorney to commence the action has not been served upon him, apply, upon notice, to the court or judge thereof, for an order direct- ing the attorney to produce such evidence. § 1513. Order thereupon. Upon such an application, the court or judge must, in a proper case, make an order, requiring the plaintiff's attorney to produce, as directed therein, evidence of his authority to commence the action, and staying all proceedings therein, on the part of the plaintiff, until the evidence is produced. 32 ACTION TO RECOVER REAL PROPERTY (EJECTMENT), Art. 7. Production of Authority by Attorney. § 1514. Evidence of authority. Any written request of the plaintiff or his agent, to the plaintiff's attorney, to commence the action, or any written recognition of his authority so to do, veri- fied by the affidavit of the attorney, or any other competent witness, is sufficient presumptive evidence of such authority. On a motion to compel the attorney for plaintiff in ejectment to produce evidence of his authority to commence the action, a veri- fication of the complaint is in legal effect a written request and recogition of the authority of the attorney to commence the action. Graham v. A)idrc%vs, 11 Misc. 649, 66 St. Rep. 177, 32 Supp. 799, 24 Civ. Pro. 263. The court has a discretion in regard to requiring the authority of an attorney to be disclosed, and written authority may be re- quired. Steivart v, Stewart, 56 How. 256. The general rule is that a retainer will be presumed, and an appearance by attorney will be recognized as regular. Hamilton v. Wright, 37 N. Y. 502. In case an application is made for an order for an attorney to pro- duce his authority the court has no discretion, but is bound to grant the order and stay proceedings meanwhile, and the order must state where the authority is to be produced. Harris v. Mason, 10 Wend. 568 ; Turner v. Davis, 2 Den. 187 ; McDermott V. Daiison, i How. 194; Hozvard \r . Hoivard, 11 How. 80. On the return of an order to show cause why the attorneys should not be compelled to produce their authority to bring the action, plaintiff swore that he had instructed it to be brought, and an order was made reciting the production of the authority. On a motion to dismiss on the ground that the authority required by statute was not shown, Jield, that the former order was conclusive unless reversed on appeal. Carpenter v. Allen, ^'^ Super. Ct. 322. Before the Code of Civil Procedure, it was held that a general agent of plaintiff could not give authority. Howard v. Howard, II How. 80. But see the language of § 15 14. An instrument executed by one of two joint owners, in the names of himself and his co-tenant, recognizing an action in their names, is sufficient. Howard v. Howard, 1 1 How, 80, supra. As to the attorney's authority where action is brought in name of grantor, for benefit of grantee, see Hamilton v. Wright, 37 N. Y. 502. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 33 Art. 8. The Complaint. ARTICLE VIII. The Complaint, § 15 ii. § 1511. Property claimed in action; how described in complaint. The complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is en- titled thereto. Under § 1496 the plaintiff in ejectment must demand in the complaint damages for withholding the property. That section is so closely associated with § 1497, treating of damages, and § 1531, that it is printed in that connection as it is a question of recovery rather than of pleading. The provisions of the Revised Statutes — 2 Edm. 313, §§ 8 and 9 — required a fuller description, and also that where an undi- vided interest was claimed, that it should be so stated. The general rule is, that the State and county in which the lands are situated should be set forth, as well as the town or city. Sedgwick & Wait, § 457. In Buddy. Bingham, 18 Barb. 494, under the Revised Statutes, a description was held so imperfect as to be incapable of amend- ment, while in Olendorfv. Cook, i Lans. 37, after a description of the premises had been given on the trial, an amendment was allowed. The tendency of modern decision has been to reduce the cer- tainty required in pleading within convenient limits. Seward v. Jackson, 8 Cow. 427. The practice of making fictitious persons parties as lessors has been abolished, and the real parties in inter- est are named as parties to the action. Hubbcll v. Lerch, 62 Barb- 296, affirmed, 58 N. Y. 237. An averment in pleading will be construed most strongly against the pleader. Slocum v. Clark, 2 Hill, 475. As to what is a sufficient description, see Hansee v. Mead, 2 Civ. Pro. R. 175. The complaint must allege that plaintiff is seized of an estate in the premises claimed, and that he is entitled to the immediate possession of them, and that the defendant unlawfully withholds the possession from him. Alvordv. Hetzel, 2 How. N. S. 88, and cases cited ; Walter v. Lockwood, 23 Barb. 228 ; People v. Mayor of Nczv York, 28 Barb. 240. It must show plaintiff out of posses- [Special Actions — 3.] 34 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 8. The Complaint. sion — Taylor v. Crane, 15 How. 358 — and the defendant in possession. Banyer v. Empie, 5 Hill, 48 ; Redfield v. Utica, etc. R. R. Co. 25 Barb. 54; Child v. Chappell, 9 N. Y. 246. If the complaint fails to state the nature of the estate claimed by plain- tiff, the defect should be taken advantage of by demurrer. Clark V. Crego, 47 Barb. 599. As to the effect of stating plaintiff's inter- est as a different one from that sought to be proven, see, under Revised Statutes, Harrison v. Stevens, 12 Wend. 170; Holmes v. Seely, 17 Wend. 75. While a complaint which alleges that plaintiff owns title to the lands described therein and demands judgment for the surrender of possession, cannot be upheld as a complaint in ejectment, in the absence of an averment that the defendant is in actual posses- sion or that the property is vacant and the defendant claims title thereto, it may be upheld as an action to remove a cloud on title where it avers facts showing that the defendant's title is apparently good but is in fact totally bad. Sanders v. Parshall, 6"/ Hun, 105, affirmed, 142 N. Y. 679, 51 St. Rep. 551. It is not sufficient that a complaint in ejectment alleges that plaintiff's husband executed a deed of the property to defendant, without averring that defendant is occupant or exercises acts of ownership or claims title or interest in the property. Connolly v. Newton, 85 Hun, 552, 66 St. Rep. 704, 33 Supp, 102. If an equitable title is relied on, it should be so stated. Peck V. Newton, 46 Barb. 173. But it was held in Chapman m.D.L & W. R. R. Co. 3 Lans. 261, that a plaintiff who had alleged the ownership of lands in fee simple, might prove title as mortgagee in possession. On a claim for the whole property, judgment can- not be had for an undivided part, at least without amendment. Cook V. Wardens, etc. St. Paul's Church, 5 Hun, 293 ; Holmes v. Seeley, 17 Wend. 75 ; Cole v. Irvine, 6 Hill, 634; Gillett v. Stan- ley, I Hill, 121 ; Smith v. Long, 12 Abb. N. C. 133, Court of Appeals, reversing 9 Daly, 429. As to amendment, see Kellogg v. Kellogg, 6 Barb. 116; St. John v. Northrup, 23 Barb. 25. The nature of the plaintiff's claim need not be stated in detail, but the general form or character of the interest must be averred. Walter v. I.ockzvood, 2 Barb. 228 ; Austin v. Schuyler, 7 Hun, 275 ; Rogers v. Sins- heimer, 50 N. Y. 646; Clark v. Crego, 47 Barb. 599, affirmed, 51 N. Y. 646. The general rule, of course, applies that it is not proper to plead ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 35 Art. 8. The Complaint. evidence. Delavan v. Niles, 9 Abb. N. C. 48. It is sufficient to allege that plaintiff has the lawful title as the owner in fee. San- ders V. Lcavy, 16 How. 308. A complaint which states that on some day certain after his title accrued, plaintiff was possessed of the premises, with a description of the premises with reasonable certainty, so that, from such description, possession of the premi- ses claimed may be determined, that being so possessed, the de- fendant, at a time specified, entered upon said premises, and unlawfully withholds possession from plaintiff, and claiming dam- ages, has been held sufficient. Warner v. Nelligar, 12 How. 402 ; Ensign v. Sherman, 14 How. 439. But proof that the property was conveyed to plaintiff by a person not shown to have been in pos- session, or to have title, is not sufficient to show title. Gardner v. Heart, i N. Y. 528. Complaint in ejectment cannot on trial be amended to one for encroachment of cornice. Vrooman v. Jack- son, 6 Hun, 326. An allegation that plaintiff is entitled to the possession of land, and to its rents and profits, is a mere allegation of a conclusion of law, and is not sufficient to show a cause of action ; the facts on which the conclusion is based should be stated. Sheridan v. Jack- son, 72 N.Y. 170, affirming 10 Hun, 89. A complaint for the re- covery of the rents and profits of real estate held adversely to plaintiff's intestate must show that the plaintiff's intestate obtained possession. Grout v. Cooper, ^\inxi,\2^. For insufficient complaint in a peculiar case, see Bradley v. Dwight, 62 How. 300. Where a complaint in an action of ejectment does not set forth that de- fendant unlawfully withholds, or that he entered without the consent of the plaintiff, or in any wise unlawfully, or that plain- tiff is entitled to the immediate possession of the premises, or equivalent allegations, it will be held bad on demurrer. Moore v. Lehman, 52 Super. Ct. 283. Contra, Halscy v. Gerdes, 17 Abb. N. C. 395, holding that a complaint alleging that plaintiff is seized in fee, and that defendants are in possession and withhold the same, is sufficient on demurrer. Citing Jenkins v. Fahey, 73 N. Y. 355, and disapproving case last cited. Where a complaint states all the elements of an action in eject- ment, its statements of additional facts as to damages, and upon which an application for a receiver might be based, do not change the cause of action to one in equity. Biicher v. Carroll, 19 Hun, 618. 36 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 8. The Complaint. Where plaintiff, claiming possession and rents, sets out that defendants in an action between them had a receiver appointed, who had received the rents sought to be reached, a cause of action is not stated, unless it is alleged that the parties in the previous action acted in hostility to plaintiff, or that plaintiff has been in- jured by their action. Sheridan v. Jackson, 72 N. Y. 170. In City of New York v. Smith, 64 How. 89, it was held that, in an action of ejectment to enforce a forfeiture for breach of covenant, the facts constituting the breach must be pleaded. Plaintiff can- not, in one action, claim the recovery of the premises, confirma- tion of his title, and a decree for the conveyance of an outstand- ing title. Lattin v. McCarthy, 8 Abb. 225. Trespass quare clausiuii /regit and ejectment cannot be joined. Smith v. Hal- lock, 8 How. 73 ; Budd v. Bingham, 18 Barb. 494. Where parties occupied separately different stories of the building, they were properly joined as defendants. Pearce v. Ferris, 10 N. Y. 280; Pearce v. Colden, 8 Barb. 522. In ejectment between co-tenants actual ouster should be averred, or some act which amounts to a total denial of plaintiff's rights. Edwards v. Bishop, 4 N. Y. 61. As to the right to allege dam- ages for withholding possession, see Article X, §§ 1496 and 1531, and Vandervoort v. Gould, 36 N. Y. 639. Where there is no allegation in the complaint of the value of the use and occupation, and the only mention of damages is in the prayer for judgment, an objection to the admissibility of evi- dence as to the value of use and occupation is good. Lamed v. Hudson, 57 N. Y. 151. But in Cagger v. Lansing, 64 N. Y. 417, where the complaint contained in substance an allegation demand- ing mesne profits, and no objection was made to the admission of the evidence, the judgment was sustained. In Seaton v. Davis, i T. & C. 91, it is held that to recover mesne profits there must be a separate count in the complaint. But the objection must be taken on the trial, otherwise it will be deemed to be waived. These decisions were under the Code of Procedure. See as to change from rule as laid down in 57 N. Y. 151, supra, Delisle v. Hunt, 36 Hun, 620. An allegation in a complaint in ejectment that the plaintiffs are and for six years have been the owners of all the right, title and interest of the lessor in the demised premises and entitled to the rents reserved in the lease is sufficient ; it is not necessary to I ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 37 Art. 8. The Complaint. allege how they acquired title. A complaint in ejectment for non-payment of the rent reserved in three separate leases of different premises contains three causes of action, which should be separately stated and numbered. Ovcrbagh v. Oathout, 90 Hun, 506, 35 N. Y. Supp. 962, 70 St. Rep. 642. A complaint in ejectment, after the usual statements, described the buildings upon the several parcels and the business carried on in each and demanded judgment for possession and damages for withholding, including rents and profits. Held, that it was not demurrable as improperly uniting several causes of action. Fra- zier V. Dewey, i App. Div. 138, 37 N. Y. Supp. 973. A complaint that does not allege that defendant unlawfully withholds or entered without plaintiff's consent, or in any wise wrongfully, or that plaintiff is entitled to immediate possession, is demurrable. Moore v. Lehman, 52 N. Y. Supr. 283. In Roivland v. Miller, 44 St. Rep. 826, it was held that an alleged description in a complaint described only a straight line and nothing else and that the complaint was demurrable. Where the deeds put in evidence by plaintiff do not locate the property with sufficient accuracy to enable the court or jury to determine whether it is described by the words of the complaint there can be no recovery. Jarvis v. Lynch, 36 St. Rep. 711, 13 Supp. 703. Where a complaint described twenty-five acres in a single parcel and the court allowed without amendment of the complaint a recovery for eleven acres thereof, it was held proper, and that the requirements of this section of the Code, that the complaint must describe the property claimed, with common certainty, did not conflict. Barley v. Roosa, 35 St. Rep. 898. See Art. XIV, en- titled "Verdict." Where plaintiff claims an estate, not in fee simple, the rule requiring the complaint, where it alleges that plaintiff is an heir of the ancestor, to show how he is an heir, does not apply. Mas- terson v. Townshend, 23 St. Rep. 626. A complaint cannot be amended on the trial, so as to change the cause of action, into one to compel defendant to purchase land, at a price to be fixed by the court or remove its road from the land. Gas Light Co. v. Rome, etc. R. R. Co. 24 St. Rep. 154. 38 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. S. The Complaint. In order to justify a judgment for plaintiff in an action of eject- ment upon demurrer to the complaint, the complaint must dis- close on its face such a state of facts as that their admission by the demurrer leaves but the legal conclusion to be drawn in the plaintiff's favor. Masterson v. Townshend, 123 N. Y. 458. Where the complaint does not disclose how the plaintiff became the owner, and the defendant is unable to ascertain the theory upon which the plaintiff claims the land, an order for the exami- nation of the plaintiff as to the source and character of the title, is proper. Thebaud v. Hume, 39 St. Rep. 446. Precedent for Complaint — Short Form. SUPREME COURT — County of Monroe. EDWIN A. BARNES, Plaintiff, agst. HARVEY E. LIGHT and MARY H. LIGHT, Deff,ndants. -116 N. Y. 34. The plaintiff above named, by way of complaint against the defend- ants above named, alleges upon information and belief as follows: That he is theowner in fee and entitled to the immediate posses- sion of the premises described as follows; (Insert description.) That on and prior to the first day of October, 1882, plaintiff was possessed of said premises, and being so possessed thereof, that the defendants afterwards and on or about the first day of October, 1882, entered into the said premises and that they unlawfully with- hold from the plaintiff the possession thereof to his damage five hun- dred dollars. Wherefore plaintiff demands judgment: 1. That he is the owner in fee of said premises. 2. That he is entitled to the immediate possession thereof. 3. For five hundred dollars damages besides costs. HENRY W. CONKLIN, Plaintiff's Attorney, ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 39 Art. 8. The Complaint. Precedent for Complaint — Short Form. SUPREME COURT. JOHN H. HOWE, agst. \ 143 N. Y. 190. ALFRED BELL Plaintiff complains of the defendant and for a cause of action alleges; First. That said plaintiff is the owner in fee and entitled to the possession of all that tract or parcel of land situate in the City of Rochester, County of Monroe and State of New York, and bounded and described as follows: (Insert description.) Second. That on the 3d day of September, 1889, this plaintiff was in possession of said above described premises claiming title thereto; that subsequently and before the commencement of this action the defendant unlawfully entered upon said premises and is now in pos- session of the same, claiming title thereto, and has excluded and continues to exclude the plaintiff from possession thereof, to the damage of the plaintiff of five hundred dollars ($500.00). Wherefore plaintiff demands judgment against the defendant for the recovery of said lands and premises in fee and the possession thereof, with five hundred dollars ($500.00) damages for withholding the same, besides the costs of this action. July i6th, 1890. NATHANIEL FOOTE, Plaintiff's Attorney. Precedent for Complaint — Setting Out Plaintiff's Title. SUPREME COURT — County of Ulster. EDWIN YOUNG, as Trustee under the Will of THOMAS CORNELL, Deceased, agst. SARAH B. OVERBAUGH. - 145 N. Y. 158. Plaintiff complains of defendant and alleges: First. That one Thomas Cornell, late of Kingston, New York, deceased, was, at and before his death, seized in fee of all that piece or parcel of land situate, lying and being in the City of Kingston, Ulster County, New York, bounded and described as follows: (Insert description.) and was, at and before his death, entitled to the possession of said premises. Second. That being so seized he died on the 30th day of March, 1890, leaving a will by which this plaintiff and Catharine Ann Cor- 40 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 8. The Complaint. nell were constituted and appointed trustees thereunder and execu- tors thereof. Third. That on the 3d day of April, 1890, said will was duly proved as a will of real estate, and admitted to probate in the ofiface of the Surrogate of the County of Ulster, and the said Catharine Ann Cornell thereupon and on the same day voluntarily renounced her appointment as such trustee and executrix, by an instrument in writing signed by her and duly filed and recorded in said Surro- gate's office. Fourth. That afterwards and on the 3d day of April, 1890, the plaintiff was, by the Surrogate's Court of the said County of Ulster, duly appointed as sole executor of said last will and testament of said Thomas Cornell, by letters testamentary duly issued to said plaintiff, and that said plaintiff has duly qualified and entered upon the discharge of his duties as such executor and trustee, and was at the time of the commencement of this action, and is acting in the execution of a trust created by said will. Fifth. That the said Thomas Cornell, in and by the terms of his last will and testament, gave, devised and bequeathed the lands and premises above described to his executors and trustees to be held by them and their successors in trust for the uses and purposes in said will set forth. Sixth. That said plaintiff by reason of the facts hereinbefore alleged is the owner of said lands and premises, and is seized of the entire estate therein, subject only to the execution of the said trust as created and set forth by said will, and is entitled to the immediate possession of said lands and premises. Seventh. That the defendant is in the possession of said premises and claims a right thereto, and refuses to give up the possession thereof to the plaintiff, although the same has been duly demanded, and wrongfully withholds the same from the plaintiff. Wherefore the plaintiff demands judgment: First. For the possession of said premises. Second. For one thousand dollars, the plaintiff's damages by the withholding of the same, together with his costs. H. C. SOOP, Attorney for Plaintiff. Precedent for Complaint — Title to Highway. SUPREME COURT — Erie County. CHARLES EELS agst. THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY. 'I43 N. Y. 133. The above named plaintiff by John M. Bull, his attorney, for his. cause of action against the above named defendant alleges: I. That he is the owner in fee simple of the farm of land known as part of lot No. 29, section i, township 11 and range 5 in the town ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 4I Art. 8. The Complaint. of Alden, C'ounty of Erie, and State of New York, bounded as fol- lows: (Insert description.) subject to the use of said road for high-way purposes only. II. That ever since the 4th day of August, 1856, and up to the first day of September, 1888, plaintiff has been in possession of said premises and is now entitled to the immediate possession thereof as such owner. III. That as plaintiff is informed and believes the defendant is a domestic corporation created by and existing under the laws of the State of New York. IV. That the plaintiff being in possession of said premises, the de- fendant by its agents and servants did on or about the ist day of September, 1888, unlawfully enter upon said premises lying between the center line of said Cayuga Creek Road and the southerly side thereof, and eject this plaintiff therefrom and dig holes in, and erect twelve telegraph poles upon and stretch wires over said premises throughout the whole length thereof, from to , and the defendant is now in possession of the same and in the actual occupancy thereof. V. That said defendant possesses and occupies said premises for other than highway purposes without leave of the plaintiff, without paying or offering to pay the plaintiff any compensation therefor and without any right or title thereto, and now unlawfully withholds pos- session thereof from the plaintiff, to his damage five hundred dollars. Wherefore the plaintiff prays for judgment against the defendant that it remove said poles and wires from said premises and surrender to plaintiff possession thereof and pay him five hundred dollars dam- age for withholding the same, besides the costs of this action, and for such other relief as may be just. JOHN M. BULL, Plaintiff's Attorney. Precedent for Complaint — Setting out Facts on which Plaintiff's Title is Based. SUPREME COURT ~ Ulster County. DANIEL E. DONOVAN agst. }>78 N. Y. 244. JAMES H. VANDEMARK. The plaintiff complains and alleges, that on or about the 8th day of May, 1863, Andries Schoonmaker, since deceased, made his last will and testament, whereby, among other things, he gave, devised and bequeathed to George Chambers, all his real and personal estate of every name and kind wheresoever the same may be, in trust, 42 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 8. The Complaint. nevertheless, for the necessary support and maintenance of his son Abraham during his natural life, and after the death of said Abraham he gave and bequeathed the said estate to the lawful children of said Abraham, their heirs and assigns forever. That shortly after the making of said will, the said Andries Schoonmaker died, having title to and being the owner of the fol- lowing described real estates and premises, to-wit: All that farm of land late of Andries Schoonmaker, now deceased, as owned and occupied by him at the time of his decease, situate in the town of Rosendale, Ulster County, bounded on the north by premises formerly of Nathaniel Bruce and the Rondout Creek ; east by lands of Widow Ann Eliza Wood and Egbert Schoonmaker; south by Egbert Schoonmaker aud Frederick Schoonmaker; and west by lands of Frederick Schoonmaker and lands formerly of Nathaniel Bruce, containing eighty acres. That said will was duly proved and admitted to probate by the surrogate of Ulster County, and the same was duly recorded on the 3d of July, 1863, in book O of wills, at page 527, in the Ulster County surrogate's office, and by virtue of said will the title to the aforesaid real estate became vested in the said George Chambers. That on or about the 26th day of July, 1875, the said George Chambers did transfer, grant and convey unto the plaintiff, Daniel E. Donovan, all the property, real and personal, mentioned or referred to in said will, and all his right, title and interest in and to the same, and each and every part thereof, to the end that the said Daniel E. Donovan may assume and execute the trusts and obliga- tions therein mentioned in his place and stead, which deed and transfer was duly approved, sanctioned and confirmed by an order of the Supreme Court of the State of New York, dated July 31, 1875, and duly filed and entered in the office of the clerk of Ulster County, and by which order the plaintiff was expressly appointed to execute said trusts under said will in the place and stead of the said George Chambers. That under and by virtue of the said will, conveyance and order, the title of the aforesaid premises became and still is vested in the plaintiff for the purposes mentioned in said will, and the plaintiff is entitled to the possession thereof. That the defendant has entered upon the said premises and is en- gaged in committing waste thereon in working, filling up and injur- ing a valuable cement quarry on said premises, and withholds the possession of the premises hereinbefore described from the plaintiff, and refuses to deliver the possession thereof to the plaintiff, although the same has been repeatedly demanded. Wherefore the plaintiff demands judgment: 1. For the possession of said premises. 2. For $5,000 damages for withholding the same. 3. That the defendant be restrained by injunction from commit- ting or permitting any further waste on the said premises. 4. For the costs of this action. JOHN E. VAN ETTEN, Plaintiff's Attorney. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 43 Art. g. Defences Legal and Equitable and how Pleaded. ARTICE IX. Defences Legal and Equitable and how Pleaded. Sub. I. Defences generally. 2. Adverse possession as a defence. 3. Equitable defences. 4. Defences, how pleaded. Sub. I. Defences Generally. Plaintiff cannot recover upon an equitable title. Wright v. Douglass, 3 Barb. 554; reversed, 2 N. Y. 373, 10 Barb. 99, 7 N. Y. 564; Murray M, Walker, 31 N. Y. 399; Peck v. Newton, 46 Barb. 173 ; Potter v. Sisson, 2 Johns. Cas. 321 ; Kemball v. Van Slyke, 8 Johns. 487; WJiite v. Carney, 16 Johns. 302; Sinclair v. Field, 8 Cow. 543; More v. Spcllman, 5 Den. 225. The legal title will prevail at law as against one having only an equitable interest. Simons v. Chase, 2 Johns. 84; jfackson v. Pierce, 2 Johns. 221. But see Boyd v. Boyd, 12 Misc. 119, 33 Supp. 74, 66 St. Rep. 731, contra. An outstanding title will defeat ejectment though the defend- ant does not claim under it. Loop v. Harrington, 9 Cow. 86 ; Bloom v. Bur dick, i Hill, 130. But an intruder cannot set up title in a third person. Jackson v. Harder, 4 Johns. 202. Such title to avail as a defence must be out of the plaintiff at the commence- ment of the suit. Raynor v. Tinierson, 46 Barb. 518. An outstanding estate in a tenant by the curtesy will defeat eject- ment. Adair v. Lott, 3 Hill, 182; Dodge v. Wellman, 43 How. 427; Cramer v. Benton, 4 Lans. 291 ; Hicks v. SJieppard, 4 Lans. 335 ; HoppougJi V. Strubble, 60 N. Y. 430 ; Thompson v. Egbert, i Hun, 484. It is an equitable defence that plaintiff received the legal title as security for moneys advanced by him to defendant to enable him to pay for the premises. Dodge v. Wellman, 43 How. 427. In ejectment the court will only grant to defendant a decree reforming the conveyance where all the parties are before the court. Cramer v. Benton, 4 Lans. 291 ; Hicks v. Sheppard, 4 Lans. 335. Evidence of fraud in obtaining title on the part of plaintiff's grantor is proper as a defence. Ritter v. Worth, 58 N. Y. 627. In ejectment against a lessee from the city of New York, proof on the part of the city, which was admitted to defend, of excrcis- 44 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 9. Defences Legal and Equitable and how Pleaded. ing acts of ownership, taking proceedings to procure title to the land, etc., was held a sufficient defence to establish possession under claim of title. Carlton v. Darcey, 90 N. Y. 566, reversing 46 Super. Ct. 484. But a vendee who has refused to accept a deed under his contract cannot set up an outstanding mortgage as a defence. Pierce v. Tuttle, 53 Barb. 155. If the plaintiff's evidence shows an outstanding title in a third person there can be no recovery. Reformed Church v. Schoolcroft, 5 Lans. 206. In an action by an heir to recover an undivided share of his ancestor's estate, the defendant may set up as a defence that a conveyance of other lands was made to plaintiff by the ancestor by way of advancement. Bell v. Champlain, 64 Barb. 396. A tort-feasor cannot set up a defect in title of plaintiff, as assignee in bankruptcy, by reason of irregularities in the bankruptcy pro- ceedings. Stevens v. Haiiser, 39 N. Y. 302. A satisfied mort- gage paid off by the defendant will not bar ejectment. Watson V. Cris, II Johns. 437. A conveyance in trust by the lessor after suit brought will not bar ejectment. Walton v. Leggett, 7 Wend. 377. Possession of real estate by a mortgagee, acquired by force or fraud, will not constitute a defence in ejectment brought by the owner. Hoivell v. Leavitt, 95 N. Y. 617. The fact that a defendant obtained possession by force does not prevent him from showing title in himself. Stansbury v. Farmer, 9 Wend. 201 ; Jackson v, Morse, 16 Johns. 197. That the defendant is in possession, under a lease from the assignee, of an unpaid mort- gage, is a complete defence in case the lease was prior to the assignment. Porter v. McGrath, 41 Super. Ct. 84. If defendant, after suit brought, became assignee of a mortgage upon the premises which became forfeited before trial, he may defend as assignee in possession, and by supplemental pleadings the suit may become one for foreclosure or redemption. Madison Avenue Baptist Church v. Oliver Street Baptist Church, 73 N. Y. 82. Where both parties claim under the same person by quit- claim deed, the defendant in possession may show that their com- mon grantor had not title. Henry v. Reichert, 22 Hun, 394. Where a farm is in the apparent joint occupation of husband and wife, the question of occupancy is one for the jury. Martin V. Rector, 30 Hun, 138. Whatever shows the plaintiff is not en- titled to immediate possession constitutes a defence to an action of ejectment. Kurkelv. Haley, 47 How. 75. Proof of pendency ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 45 Art. 9. Defences Legal and Equitable and how Pleaded. of another action between the same parties, to recover possession of the same premises, is a defence. Ritter v. Worth, 58 N. Y. 627, reversing i T. & C. 406. It is no defence to an action of ejectment that an occupant who claims a special right in the property is not made a party. Hemiessy v. Paulsen, 12 Misc. 384 ; 147 N. Y. 255 ; 69 St. Rep. 539. A simple denial of plaintiff's title is the proper mode of raising an issue in regard thereto, and it is neither necessary nor proper to set out the evidence of defendant's title. Terr ell v. Wheeler, 13 Civ. Pro. R. 178. Where, in an action of ejectment the plaintiff failed to make tenants who are the actual occupants of the premises parties, as is required by section 15 12 and the complaint did not disclose this omission, the remedy of the defendant is to set up the non-joinder by answer, otherwise the objection is waived. Clasonw. Baldwin, 37 St. Rep. 213. Where the answer was a general denial, it was held that this was substantially a denial that defendant was guilty of unlawfully withholding the premises as alleged in the complaint, and under it defendant was entitled to prove any matter which would defeat the action, and plaintiff had the burden of showing a right to the possession of the premises. Gilman v. Gihnan, in N. Y. 265, reversing i St. Rep. 567. A defendant who, while standing in the relation of tenant to the plaintiff, was appointed general guardian of some of the own- ers of same, is not permitted to deny the right of his landlord nor is the right under which he claims to occupy the premises any defence to the action to recover their possession by plaintiff. Cornell v. Hayden, 23 St. Rep. 270. In Second Methodist Episcopal Church v. Humphreys, 142 N. Y. 137, 58 St. Rep. 616, the question of what constitutes a practical location of a line and its effect, was considered. Defendant in ejectment claiming a practical location of the dis- puted boundary, must show acquiescence in the line claimed to have been so established for at least twenty years. Clark v. Davis, 28 Abb. N. C. 135. The provisions of the Revised Statutes avoiding a deed of lands in the possession of one claiming under a title adverse to that of the grantor, does not apply to a deed conveying a parcel of land the greater part of which is in the grantor's possession, 46 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 9. Defences Legal and Equitable and how Pleaded. but where by reason of a disputed boundary a small part is not in his actual possession at the time of the delivery of the deed. Clark V. Davis, 28 Abb. N. C. 135. Where the deeds put in evidence by the plaintiff do not locate the property with sufficient accuracy to enable the court or jury to determine whether it is described by the words of the com- plaint, there can be no recovery. Jarvis v. Lynch, 36 St. Rep. 711. The fact that twenty years have elapsed since the recovery of the judgment for possession of land, during which plaintiff has never sought to enforce it by a writ of possession, does not raise the presumption that the defendant has at some time during that period paid rent and costs and become entitled to keep the pos- session. Van Rensselaer \. Wright^ 31 St. Rep. 897. Under an answer denying allegation of the complaint in an action of ejectment, the defence of want of title in the plaintiff is admissible. Benton v. Hatch, 122 N. Y. 322. Where plaintiff was never in possession, and defendant's title by adverse possession was complete, it was held defendant had a right to fortify his title or purchase peace at any price, and of whom.soever he chose without being estopped thereby from set- ting up his title. Greene v. Couse, 38 St. Rep. 926. In an action of ejectment brought by a devisee of land against a legatee whose legacy was charged on the land, such legacy is not available as a counterclaim. Dinan v. Coneys^ 143 N. Y. 544. The answer in ejectment need not set up specifically facts which merely refute the claim of a right of entry. Crowley v. Murpliy, II Misc. 579. Sub. 2. Adverse Possession as a Defence. The statutory provisions regulating adverse possession as a defence to an action, are contained in sections 364 to 375 of the Code, and properly belong under that part of procedure relative to limitations. As the defence is, however, peculiar to actions of ejectment, it must receive some consideration in connection with that topic. Section 366, in effect, provides that the defence of adverse possession is not available unless the party making the defence or his predecessor in the title was seized or possessed of the premises within twenty years before the com- mission of the act with respect to which it is made. As to what ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 47 Art. 9. Defences Legal and Equitable and how Pleaded. constitutes such seizin or possession, a full discussion is had in Tyler v. Heidorn, 46 Barb. 439. Where the State, through its agents, took land for a canal, claiming to act under a statute which provided for acquisition of the fee, and remained in possession for more than twenty years, it was held that even if the statute were unconstitutional, the title of the State became complete and absolute by adverse po.s- session. Eldridge v. City of BingJiamton, 120 N. Y. 309. The rule with regard to title by adverse possession is restricted, however, by section 368, which provides that the person who estab- lishes a legal title to the premises is presumed to have been in possession thereof within the time required by law, and that the occupation by another person is deemed to have been in subordi- nation to the legal title unless the premises have been held and possessed adversely for twenty years before the commencement of the action. Under this rule the burden of establishing adverse possession is on defendant and if the title of the party from whom plaintiff's title is deduced be admitted or established, it is not necessary to prove actual possession in himself or in any of the intermediate grantees from whom he derives title. Stevens v. Haiiser, 39 N. Y. 302, reversing i Rob. 50, i Abb. N. S. 391. To overcome the presumption raised by this section, the pos- session must be under a claim of title evinced by continuous acts open, notorious and consistent only with such claim, exclusive of every other right. It must be continuous for twenty years. Buttery v. R. IV. & V. R. R. Co. 14 St. Rep. 131; Bliss v. Johnson, 94 N. Y. 235; Doherty v. Matsell, 119 N. Y. 646, 30 St. Rep. 88, afifirming 11 Civ. Pro. 392, 3 St. Rep. 517, 54 N. Y. Supr. 17. The adverse possession must continue twenty years in order to establish a defence. Clark v. Davis, 19 Supp. 191 ; Woodruff v. Paddock, 130 N. Y. 618, afifirming 56 Hun, 288. Continuous adverse possession for a period sufificient to bar an action, not only cuts off the owner's remedy, but divests him of his estate and transfers it to the party holding adversely. The adverse possession is conclusive evidence of title in the latter. Baker v. Oakivood, 123 N. Y. 16, 33 St. Rep. 223, affirming 49 Hun, 416, 22 St. Rep. 602, 3 Supp. 570. Peaceable and uncontrovertible possession for forty years jus- 48 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 9. Defences Legal and Equitable and how Pleaded. tifies the presumption of an ancient grant. Mission of Immacu- late Virgin v. Cronin, 50 St. Rep. 641. Title acquired by adverse possession for twenty years is as strong as title obtained by grant and is not forfeited by an inter- ruption of the occupation thereof. Sherman v. Kane, 86 N. Y. 57. But possession must be under a claim of title. Higgin- botham v. Stoddard, 72 N. Y. 94. Bedell v. Shaw, 59 N. Y. 46; Smith V. Faulkner, 48 Hun, 186, 15 St. Rep. 837. A general assertion of ownership, if there be color of title, how- ever groundless in fact, will sufifice. American Batik Note Co. v. New York Elevated R. R. Co. 129 N. Y. 252. Under section 369, however, it is provided that where such occupation is under a written instrument or judgment, it is pre- sumed to be adverse. Entry and possession under a deed given without right in the grantor, is entry under color of title and the possession is adverse. Sands v. Hnghes, 53 N. Y. 287; Hilton v. Bender, 2 Hun, i, reversed on another point 69 N. Y. 75 ; Towle v. Remsen, 70 N. Y. 303 ; Rowland v. Newark Cemetery Ass'n, 66 Barb. 366, Possession of the tenant is the possession of the landlord until the term of the tenancy expires, and adverse possession cannot commence until twenty years after expiration of the lease. Church V. Schoonmaker, 42 Hun, 225. What constitutes adverse possession under claim of title either written or unwritten, and the relation of landlord and tenant as effecting adverse possession, is defined by sections 370 to 373. Where plaintiff's evidence showed an actual inclosure of the property in dispute as part of his farm, continuously for more than twenty years, but defendant's evidence was that the fence was temporary and mainly used to keep plaintiff's cattle from en- tering defendant's woods, it was held the question as to whether the portion claimed was protected by an inclosure and whether it had been usually cultivated and improved, within the meaning of the statute, was for the jury. Barnes v. Light, 116 N. Y. 34. To bar the true owner, the adverse possession must be con- tinued during the whole time. Wheeler v, Spinola, 54 N. Y. 377; Yates V. Vandebogert, 56 N. Y. 526. A person cannot acquire title to land which is uninclosed, un- occupied and unimproved, by taking a deed thereof from one not the owner and then going upon the land and asserting his owner- ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 49 Art. g. Defences Legal and Equitable and how Pleaded. ship or making occasional entries upon the land for grass or sand. Price V. Brown, loi N. Y. 669, see also People v. Turner, 145 N.Y. 451. A lot is not shown to have been usually cultivated or improved when defendant had occasionally used it as a pasture and had now and then taken wood and timber from it for shingles and staves. Popev. Hanmer, 8 Hun, 265, affirmed, 74 N. Y. 240. The occasional cutting of timber on land which is not inclosed, improved or cultivated, by the holder of a contract, for land which does not cover the premises in question, does not give him such possession as will furnish a basis for adverse possession. Weeks V. Martin, 32 St. Rep. 811, 10 Supp. 656. Entry under license to collect rent, does not constitute an ad- verse possession. Doherty v. Matsell, 16 St. Rep. 593, affirmed, 17 St. Rep. 747, I Supp. 426. The fact that plaintiff paid taxes and caused the land to be divided in lots, is no evidence of possession, actual or constructive. Thompson v. BurJians, 61 N. Y. 52, reversing 61 Barb, 260. Gathering sea-weed gives no title. Trustees of East Hampton v. Kirk, 68 N. Y. 459. Nor the cutting of ice on a pond. Gou- verneur v. National Ice Co. 33 St. Rep. i, ii Supp. 87. In Conger v. Kinney, 16 Supp. 752, 42 St. Rep. 906, and Conger V. Treadway, 43 St. Rep. 874, 132 N. Y. 259, affirming 28 St. Rep. 745, it was held that the use of a plot for burial purposes for more than twenty years, under the circumstances, gave defendant title by adverse possession. The building of a fence around land does not alone, as matter of law, necessarily constitute a taking of possession, and where the land is at the time occupied and cultivated by a tenant of one claiming title, and such occupancy continues without being inter- fered with in any degree and without any recognition by the ten- ant of any right in the builder of the fence as the owner or occu- pant, and when it appears the fence was built without the knowl- edge of such claimant, a finding is justified that the building was a mere entry, not a termination of his possession, Landon v. Townshend, 129 N. Y. 166, A brush and pole fence may be a substantial inclosure. Hill v. Edie, 17 St. Rep. 255. The intent of the section is to provide with reference to the inclosure that it shall be merely such as will give notice to the [Spfxtai. Actions — 4.] 50 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. g. Defences Legal and Equitable and how Pleaded. world that the ownership of the property is claimed. Bolton v. Shriever, 49 N. Y. Supr. 168. The occupation by an individual of a portion of a highway is a mere obstruction and nuisance, and no acquiescence of the high- way officials will deprive the public of the right to use the whole highway. Driggs v. Phillips, 103 N. Y. "j"]. When owners of adjoining lands and those under whom they claim title have, for more than twenty years, occupied under claim of title up to the boundaries fixed and have recognized it as correct, though it proves not to be the true line, it will not be disturbed. Robinson v. Phillips, 56 N. Y. 634; see, also, Eldridge v. Kenning, 12 Supp. 693, 35 St. Rep. 190. Acquiescence by adjoining owners in the location of a fence, built off the true line but which was not continuous for the whole width of the lands, nor straight, nor permanent structure, cannot be held an acquiescence in an invisible line continued in the same course. Oiisby v. jfones, 73 N. Y. 621. Where a fence is erected off of a proper line, while the land is uncultivated, and is by agreement retained as a division fence until it should be convenient to build a better and permanent one on the true line, it does not warrant either of the adjoining own- ers to claim by adverse possession up to the fence. Jones v. Smith, 73 N. Y. 205. No possession can be deemed adverse to a party who has not at the time the right of entry and possession. Robinso7i v. Phil- lips, 56 N. Y. 634. Possession does not begin to be adverse as against a person en- titled after the determination of a prior estate, during the con- tinuance of that estate. Fleming v. Burnham, 100 N. Y. i, reversing 36 Hun, 456. Occupancy by permission does not constitute adverse posses- sion. Borden v. S. S. R. R. Co. 5 Hun. 184, affirmed 6y N. Y. 588. A squatter does not obtain title by adverse possession. Matter of Mayor of New York, 44 St. Rep. 189, 18 Supp. 82. Adverse possession not founded on any written instrument, ex- tends only to the land fenced, cultivated or improved. Becker v. Van Valkenburg, 29 Barb. 319. The rule prescribing either a substantial inclosure or usual cul- tivation or improvement, as a condition of adverse possession by ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 5 I Art. 9. Defences Legal and Equitable and how Pleaded. the person claiming title to the land, not founded upon a written instrument, has no application to an easement as of passage. Every user is presumed to have been under claim of title and adverse, and the burden is upon the party alleging that the user has been by virtue of a license or permission, to prove that fact by afifirmative evidence. Colbjirn v. Marsh, 68 Hun, 269, 52 St. Rep. 378, 22 Supp. 990. Section 373 provides that the possession of a tenant is deemed possession of the landlord until twenty years after the termination of the tenancy. The effect of this section is to prevent the run- ning of the claim to adverse possession in favor of a tenant for the period prescribed, whether he has acquired another title or whether he has claimed to hold adversely. For the twenty years the landlord has the benefit and the protection of the statutory pre- sumption against the consequences of his fault or mistake or acci- dent and against acts of his tenant. Church v. Schooitmaker, 115 N. Y. 570, 26 St. Rep. 779, affirming 42 Hun, 225. The possession of the tenant is in subordination to the title of the landlord and continues so during the running of the term and for twenty years after the end of the term, notwithstanding any claim by the tenant or his successors of a hostile title. Whiting V. Ediimnds, 94 N. Y. 309. Where the relation of landlord and tenant has been once estab- lished, the possession of the latter and of his grantee is that of the landlord, and not hostile or adverse ; this is so where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of tenant, the latter denying any such relation. Bedloiv v. N. Y. Floating Dry Dock Co. 112 N. Y. 263. Where there is no written lease, the tenancy will not be pre- sumed to continue after twenty years from the last payment of rent. After that time it will be presumed that the former tenant held under a right adverse to his former landlord. Twenty years of such adverse possession bars an action. Hasbroiick v. Burhans, 6 St. Rep. 299. But on a grant in fee reserving rent where rent remains unpaid for more than twenty years, though it may be presumed that rent which accrued more than twenty years past has been paid, an extinguishment of the covenant is not presumed. Central Bank V. Hey dor II. 48 N. Y. 260 ; Lyon v. Odcll, 65 N. Y. 28. 52 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 9. Defences Legal and Equitable and how Pleaded. Section 375 relates to certain disabilities excluded from time to commence the action. That is to say extends the time within which persons may maintain an action to recover property or interpose a defence or counterclaim where they are infants, insane or imprisoned on a criminal charge. Up to 1870 the statute also included married women in this class. Adverse possession as against an infant, however, cannot be ex- tended by his disability for more than ten years after the disabil- ity ceases. Hoepfner v. Sevestorc, 30 St. Rep. 296. Where the evidence showed defendant and his predecessor had occupied the premises for more than twenty years and there was any conflict in the evidence as to the adverse holding, the case should be submitted to the jury. Tindale v. Powell, 88 Hun, 193, 68 St. Rep. 622, 34 Supp. 659. Adverse possession is good only for the part of the premises actually occupied. Corning v. Troy Iron Factory, 34 Barb. 529, 44 N. Y. 617. Adverse possession, to constitute a defence, must be actual and hostile, and not a mere trespass. McGregor v. Comstock, 17 N. Y. 162, afifirming 16 Barb. 427; Fosgate v. Her- kimer Mfg. Co. 12 N. Y. 580; Kent v. Narcourt, 33 Barb. 491 ; Miller v. Piatt, 5 Duer, 272. As to what is required in a plea of ejectment, see People v. Van Rensselaer, 9 N. Y. 291, reversing 8 Barb. 189; People v. Livingston, 8 Barb. 253; People v. Arnold, 4 N. Y. 508. As to the effect of a judgment based on paper title, when sought to be upheld on ground of adverse possession, see Armstrong v. DuBois, 90 N. Y. 95. The possession must be under claim of some specific title and not a general assertion of ownership. Higinbotham v. Stoddard, 72 N. Y. 94, afifirming 9 Hun, I. But it need not be shown that the adverse occupant declared he was occupying adversely. Christie v. Gage, 2 T. & C. 344. Possession, under a title not adverse to the grantor, is not enough, nor under a fraudulent title. Nash v. Kemp, 49 How. 522; Moody v. Moody, 16 Hun, 189. The fact that a person for twenty years claimed title to lands that were uninclosed, unimproved, surveyed them, marked the boundaries by monuments and cut trees thereon from time to time and paid taxes for a few years, does not establish adverse possession, nor, in the absence of constructive possession, autho- rize the presumption of a grant from the true owner. Mission of the Immaculate Virgin v. Cronin, 143 N. Y. 524. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 53 Art. 9. Defences Legal and Equitable and how Pleaded. The practical location of the boundary line and the acquies- cence therein by the parties for more than twenty years, is con- clusive as to the location of the line. Smith v. Faulkner, 15 St. Rep. 637. To make possession without paper title a bar in ejectment, it must be shown, by strict proof, to have been hostile in its incep- tion. Jackson V. Parker, 3 Johns. Cas. 124; Brandt v. Ogden, i Johns. 156. To give effect to a claim of title as a ground of ad- verse possession, the color of title must purport to be valid, but it need not be valid in fact. Humbert v. Trinity Church, 24 Wend. 587; LaFrombois v. Jackson, 8 Cow. 589; Northrup v. Wright, 7 Hill, 476; Monroe v. Merchant, 26 Barb. 383. The possession of a vendee, under an executory contract, cannot become adverse until he has complied with the conditions of his contract as against his vendor ; Jackson v. Camp, I Cow. 605 ; then it may become adverse. Vroo^nan v. Shepherd, 14 Barb. 441 ; Briggs V. Prosscr, 14 Wend. 227, He may defend against all the world, except his grantor, before his possession becomes adverse as to him. Whitney \. Wright, 15 Wend. 171. A per- son holding under a license cannot set up adverse possession, nor can his grantee. Luce v. Carley, 24 Wend. 45 1 ; Babcock v. Utter, I Keyes, 397. A tenant cannot plead adverse possession against his landlord. Jackson, ex dem. Fisher, v. Creal, 13 Johns. 116; Tyler v. Hci- dorn, 46 Barb. 439 ; Corning v. Troy Iro?i & Nail Factory, 34 Barb. 485. The claim, in order to sustain the defence of adverse possession, must be of the entire title. Howard v, Howard, \J Barb. 663; Smith v. Biirtis, 9 Johns. 180. And the possession will not be deemed adverse to a party who has not, at the time, the right of entry and possession. Doherty v. Qiiinn, 3 St. Rep. 517. Where a fence is built and each party holds and occupies up to it as the line, possession is adverse. Stuyvesant v. Thoinp- kins, 9 Johns. 61 ; Jones v. Sjnith, 64 N. Y. 180; see, also, Crary V. Goodman, 22 N. Y. 175. Possession for less than the statutory period is not a bar. Robinson v. Phillips, 56 N. Y. 634; Drew v. Swift, 46 N. Y. 204; Jackson v. Right niyre, 16 Johns. 314. Ad- verse possession must be pleaded in order to be available. Hansce v.Mead,2(Z\v.Vxoz. 175. Query: How far is this rule modified by the decision as to effect of adverse possession in Baker v. Oak^ wood, 123 N. Y. 16. 54 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). ^^yoMUw Art. 9. Defences Legal and Equitable and how Pleaded. The rule as between landlord and tenant that adverse posses- sion does not run, applies only where the conventional relation exists. Sands v. Hughes, 53 N. Y. 287. As to the rule with reference to purchases at execution sales, see Jackson v. Bradford, 4 Wend. 619; Jackson v. Collins, 3 Cow. 89; Jackson v. Town, 4 Cow. 599; Jackson v. Graham, 3 Caines, 188; Jackson v. Hin- man, 10 Johns. 292; Jackson v. Brink, 5 Cow. 483; Biglow v. Finch, 1 1 Barb. 498. Where the answer admitted that defendants other than the party answering, were holding adversely to the plaintiffs and to herself but alleged that the deed to the grantor had been fraudu- lently obtained, and asked its cancellation, and that she together with the other plaintiffs might recover the lands as tenants in common, it was held that this new matter was relevant to the issue, even though the issue could not be maintained, and could not be stricken out as irrelevant. Jones v. Halves, 24 St. Rep. 820. To make the possession of land adverse so as to avoid a deed under the statute against champerty, such possession must be under claim of specific title, and general assertion of ownership irrespective of any particular title is insufficient. Crary v. Good- man, 22 N. Y. 170. Under the Statute of Limitations, the adverse holding which will ripen into a title in twenty years, need only be under a claim of title, but under the Statute of Champerty, a possession for a shorter period which will render void a deed to any other person, must be under a title adverse to that of the grantor in such deed. SmitJi V. Fajilkner, i 5 St. Rep. 637. The statute making a grant of land void if in the actual posses- sion of one claiming under an adverse title, does not invalidate in whole or in part a grant when the owner is possessed and delivers possession of the greater part of the land conveyed, but by reason of a disputed boundary line a small part of it is not in his actual possession at the delivery of his grant. Danziger v. Boyd, 30 St. Rep. 889, 120 N. Y. 628, affirming 12 St. Rep. 64; Clark v. Davis, 28 Abb. N. C. 135, 19 N. Y. Supp. 191 ; Zahm v. Dopp, 46 St. Rep. 920, 19 N. Y. Supp. 963. A deed given while the true owner is in actual possession, by his tenants, is void and insufficient as a basis for an adverse pos- session. McRoberts v. Bergman, 32 St. Rep. nil. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 55 Art. 9. Defences Legal and Equitable and how Pleaded. Continuous adverse possession of land for a period sufficient to bar an action for its recovery not only cuts off the owner's remedy, but divests him of his estate, and transfers it to the party hold- ing adversely. The adverse possession is conclusive evidence of title in the latter. Baker v. Oakwood, 123 N. Y. 16. Sub. 3. Equitable Defences. Where a recovery in ejectment is attempted to be prevented by the interposition of an equitable counterclaim, such answer must contain all the elements of a complaint. A mere setting up of an agreement, with an assertion of readiness on the part of the defendant to perform, and a refusal or neglect on the part of the plaintiff to do so with no demand except for costs, is insufficient. Dewey v. Hoag, 15 Barb. 365. In ejectment against an equitable owner in fee, the defendant may have affirmative relief removing a cloud upon his title. Earle v. Willard, 5 Week. Dig. 155. Where as against proof of a clear legal title in the plaintiff, the defendant relies upon an equitable claim, he is bound to establish it as if he had brought an action for equitable relief. Dyke v. Spargur, 143 N. Y. 651, 62 St. Rep. 529. Facts which would entitle the defendant to an order for specific performance of a contract to convey the property, can be availed of as a defence to an action of ejectment. Cooper v. Monroe, yy Hun, I, 28 Supp. 222, 59 St. Rep. 418. Where the purchaser under a contract is in default in his pay- ment and the vendor brings ejectment, the purchaser may set up any equitable defence which he may have ; he may tender full performance and ask judgment that the vendor convey to him or may say that he defaulted because the vendor was unable to per- form, and ask that upon his surrender of possession the vendor repay him what he has paid, or he may set up any other equity arising out of the contract. RJioades v. Freeman, 9 App. Div. 20. A defendant may allege and prove that he is equitably the owner of the premises and entitled to a conveyance thereof or that the land was intended to be conveyed to him but by mistake in the description was not included. Chaflin v. Gantz, 17 Misc. 425. Where it appears that the plaintiff's devisor had agreed with defendant that on compliance with certain conditions she would convey or devise the land in question, it was held that as defend- 56 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 9. Defences Legal and Equitable and how Pleaded. ant could compel specific performance, it constituted a defence to the action. Kenyoji v. You/an, 25 St. Rep. 299. An equitable mortgage cannot be set up to defeat the legal title. Lowell v. Parkhurst, 4 Wend. 369. But an equitable de- fence may be set up and equitable relief obtained. Glacken v. Brown, 39 Hun, 294; Reqiia v. Holmes, 26 N. Y. 338; Traphagan V. Traphagan, 40 Barb. 537; Cavalli v. Allen, 57 N. Y. 508; Carpenter v. Ottley, 2 Lans. 451 ; Pierce v. Tuttle, 53 Barb. 155. In You?ig V. Overbaugh, 145 N. Y. 158, a parol gift of real estate and parol promise to convey was sustained as an equitable defence to an action for ejectment on the authority of Freeman v. Freeman, 43 N. Y. 34; Lobdell v. Lobdell, 36 N. Y. 330, the defendant having expended moneys on the property relying on the gift. Under an answer denying the plaintiff's ownership and alleging ownership in defendant's lessors, where the equitable title was tried, it was held judgment would be sustained. House v. Howell, 6 N. Y. Supp. 799. An equitable title is a good defence to an action of ejectment and the same state of facts which would entitle a defendant to the reformation of the deed, would establishr his equitable right to the possession of land and defeat an action of ejectment. Glacken v. Brozvn, 39 Hun, 294. To same effect, see Willard v. Bullard, 18 St. Rep. 794. Where the owner of real estate had agreed to pay his sister if she would care for and maintain their mother, and having done so during the mother's life, the sister was given possession of the real estate by the owner who agreed to give it to her in payment for the services; held that she was entitled to retain the property and could set up the facts as an equitable defence against eject- ment brought by the residuary devisees of her brother. Cooper V. Monroe, 77 Hun, i, 59 St. Rep. 418, 28 Supp. 222. Facts which were held insufficient to establish an equitable de- fence, were considered \r\ Schierloh v. Schierloh, 72 Hun, 150, 55 St. Rep. 348, 25 Supp. 6y6. In the action of ejectment, proof of some equitable right or title in the third person with whom defendant does not connect himself, is no defence to the superior legal title in plaintiff. This rule was applied where plaintiff claimed under foreclosure sale to defendant under a contract of sale by the mortgagee in possession ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 57 Art. 9. Defences Legal and Equitable and how Pleaded. of one who had no notice of an amendment to the judgment in foreclosure changing the place of sale and under which amended judgment and sale plaintiff claimed. Wtn^;' v. Be La Rionda, 131 N. Y. 422, 43 St. Rep. 305. In the action of ejectment, defendant will not be permitted to set up an escheat to the State for the purpose of defeating plaintiff's title. Croner v. Cowdrey, 139 N. Y. 471, 54 St. Rep. 728. Sub. 4. Defences, How Pleaded. Answer. — Under an answer denying the allegations of the com- plaint, the defence of want of title in plaintiff is admissible. Benton v. Hatch, 122 N. Y. 322, affirming 43 Hun, 142, followed 33 St. Rep. 517. An answer setting out what was the general issue under the former practice, to the effect that defendant is not guilty of un- lawfully withholding the premises claimed by plaintiff, as alleged in the complaint, does not prevent defendant from giving any evi- dence of matter which would defeat the action of the plaintiffs, and does not relieve the plaintiff from the necessity of showing a right to the possession of the premises as against the defendant at the time of the commencement of the action. Oilman v. Gil- man, III N. Y. 265, 19 St. Rep. 283, followed Hill v. Board of Water and Sewer Commissioners, 60 St. Rep. 20. Under a general denial the defendant, if not a mere trespasser or intruder, may show title out of the plaintiff at the commence- ment of the action without even connecting himself with such outstanding title in any way — Gillctt v. Stanley, i Hill, I2! ; Schauber V.Jackson, 2 Wend. 18; Raynor v. Timer son, d^^ Barb. 518 — since the plaintiff can only recover on the strength of his title, not on the weakness of his adversary's. Lainont v. Cheshire, 65 N. Y. 30; Wallace v. Swijtton, 64 N. Y. 188. An allegation in an answer that the premises in question equitably belong to the children of the defendant and that any title plaintiff may have is for their use and benefit, is of no avail, no facts being pleaded. De Silva v. Flynn, 9 Civ.. Pro R. 426. Under a general denial, evidence is admissible to show an estoppel. Creqiie v. Sears, 17 Hun, 123. A defendant who claims title by adverse possession cannot deny occupancy. 58 ACTION TO RECOVER REAL PROPERTY (EJECTMENT.) Art. 9. Defences Legal and Equitable and how Pleaded. Porter v. McGrath, 41 Super. Ct. 84. But a mere denial of pos- session, or of unlawful withholding, does not put the plaintiff's title in issue. Ford v. Sampso7i, 30 Barb. 183. Whatever shows that the plaintiff is not entitled to the immediate possession of the premises claimed, constitutes a defence in an action of eject- ment. Hunter v. Trustees of Sandy Hill, 6 Hill, 407. A defend- ant cannot, however, avail himself of an outstanding title, barred by the statute of limitations, or which has never been fully vested in the grantee. Chapman v. D., L. & W. R. R. Co. 3 Lans. 261 ; Hoag V. Hoag, 35 N. Y. 469. Defendant may interpose an equit- able defence, but it must be pleaded. Traphagen v. Traphagen, 40 Barb. 537; Thurman v. Anderson^ 30 Barb, 65 1; Rcqua v. Holmes, 16 N. Y. 193, 19 How. 430, 26 N. Y. 338; Corkhill v. Landers, 44 N. Y. 218; Chase v. Peck, 21 N. Y. 581 ; Crary v. Goodman, 12 N. Y. 266; Dewey v. Hoag, 15 Barb. 365; Pope V. Cole, 64 Barb. 406 ; Phillips v. Gorham, 17 N. Y. 270 ; Webster v. Bond, 9 Hun, 437; Stone v. Sprague, 20 Barb. 509; Cavalli V.Allen, 57 N. Y. 508; Hoppongh v. Struble, 60 N. Y. 430. An answer in ejectment need not specifically plead facts which merely refute the claim of a right of entry. Crowley v. Murphy, II Misc. 579, 32 Supp. 806, 66 St. Rep. 189. As to whether it is necessary to plead adverse title in order to make that defence available, see Hansee v. Mead, 2 Civ. Pro. R. 175, and compare with Baker v. Oakwood, 123 N. Y. 16. Demurrer. — Where it appears by the complaint that plaintiff is a minor, the objection must be taken by demurrer or it will be deemed waived. Seaton v. Davis, i T. & C. 91 ; Bartholomew v. Lyon, 67 Barb. 86. A complaint against four defendants, three of whom were alleged to be in possession of the whole premises and the fourth in the wrongful possession of a portion of the premises under the other three, was held not demurrable. The remedy in an action where the complaint fails to definitely describe the property sued for, is by motion to make more definite and not by demurrer. Rank v. Levinus, 5 Civ. Pro. R. 368, 50 Super. Ct. 159. ACTION TO RECOVER REAL PROPERTY (EJECTMENT.) 59 Art. 9. Defences Legal and Equitable and how Pleaded. Precedent for Answer — Setting up Equitable Defence. SUPREME COURT — County of Ulster. EDWIN YOUNG, as Trustee under the Will of THOMAS CORNELL, Deceased, agsL SARAH B. OVERBAUGH. ► 145 N. v. 158. The defendant, answering the complaint ^"of the plaintiff herein, shows to the court: First. She denies that Thomas Cornell, deceased, was at the time of his death, or for many years before, entitled to the possession of the premises described in the complaint, or that he was the equitable owner thereof, and denies that this plaintiff is the equitable owner of such property, or that he is entitled to the possession thereof. Second. This defendant further shows, that she is, and of right ought to be the owner, and is entitled to possession of the premises described in the complaint. That the said premises were by said Thomas Cornell, deceased, promised and agreed to be conveyed to this defendant for and in consideration of this defendant residing and remaining in the city of Kingston and of certain expenditures and improvements which were to be made and were made upon the premises by her. This defendant shows that many years since said Thomas Cornell agreed to give this defendant the property in question upon terms and conditions which she has complied with in full on her part, and that relying upon the said promise and agreement of the said Thomas Cornell, and at his request and with his knowledge, this defendant has paid, laid out and expended large sums of money, in erecting a house and other buildings upon the property, in improving and car- ing for the same and making it more valuable; that the said moneys were paid out and expended with the knowledge and at the sugges- tion of the said Thomas Cornell, and that this defendant went into and has remained in the possession of the premises at the request of the said Thomas Cornell, and on such promise and request paid the taxes and insurance thereon and kept the same in repair and treated them as her own property. Wherefore defendant demands: First. That the complaint be dismissed. Second. That the plaintiff be adjudged and decreed to deliver to this defendant a good and sufficient conveyance of the premises described in the complaint. Third. That she have her costs of this action. PARKER & FIERO. Attorneys for Defendant. 6o ACTION TO RECOVER REAL PROPERTY (EJECTMENT.) Art. 9. Defences Legal and Equitable and how Pleaded. Precedent for Answer — Adverse Possession. SUPREME COURT — Broome County. HALLAM ELDREDGE agst. THE CITY OF BINGHAMTON. ' 120 N. Y. 309. First. The defendant the City of Binghamton answering the com- plaint of the plaintiff herein, on information and belief denies each and every allegation of said complaint contained in the first count thereof. Second. For a second and further answer the defendant admits that so much of the premises described in the complaint as are con- tained within the limits of State street as laid out and recorded by the City of Binghamton as a public street, is in use as a public street, and with the exception of this admission, the defendant denies each and every allegation of the second count of said com- plaint. Third. For a third and further answer the defendant, upon infor- mation and belief, denies each and every allegation of said complaint not hereinbefore admitted or denied. Fourth. For a fourth and further answer, the defendant alleges on information and belief that the plaintiff, his ancestors, predecessors- and grantors have not, nor have either of them been seized or pos- sessed of the premises in question within forty years last past before the commencement of this action. Fifth. For a fifth and further answer the defendant alleges on information and belief that by chapter 32 of the Laws of 1833 passed February 23d, the construction of a canal by the canal authorities to pass through the then village of Binghamton was authorized; which canal has always been known as the Chenango Canal ; and that by said act and general laws of the State, the canal authorities were authorized to take possession of and acquire the title to the neces- sary land to build said canal; and that in pursuance of said act, and under and by virtue of the general laws of the State, such proceed- ings were had within a few years after the passage of said act, that the State acquired title to a strip of land running through said vil- lage of Binghamton where said canal was built and adjacent thereto; and that said land, the title to which was thus acquired by the State, included within its limits all the land within the limits of said State street as afterwards laid out, and as hereinafter referred to. That by chapter 391 of the Laws of 1878, the right to take possession of said canal lands, for the purpose of laying out a street was given to the City of Binghamton by the State; and for the particulars of said act the defendant refers to the same together with the amendments of the same Chapter 190 of the Laws of .1880. That under and by virtue of said acts, the common council of the City of Binghamton passed a resolution on the 9th day of June, 1879, accepting the ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 6 1 Art. 9. Defences Legal and Equitable and how Pleaded. release of the State, a copy of which resolution (marked Exhibit A.) is attached to this answer, and is hereby referred to as forming a part of the same; and that said resolution was duly approved by the Mayor of said city. That in pursuance of the laws above referred to, the acceptance of said canal lands above referred to and the powers vested in the City of Binghamton by its charter, the defendant, before the commence- ment of this action, duly laid out and recorded said State street in the manner required by law to make the same one of the public streets of the City of Binghamton, and the same by virtue of said proceedings became one of the public streets of the City of Bing- hamton. That said State street as recorded comprises all or a portion of the land described in the plaintiff's complaint, and that the defend- ant has only interfered with said lands in the manner described and in no other way and only within the limits of said canal lands in the manner described for the purpose of making said State street one of the public streets of the defendant. Sixth. For a sixth and further answer defendant further alleges all of the allegations of the fifth subdivision of the answer, to save unnecessary repetition, the defendant re-alleges and says further that more than thirty years before the right was given to the defend- ant to said canal lands as a street, the State of New York took pos- session of the said canal lands by virtue of legal proceedings, claim- ing the absolute title to said lands, and the State of New York has been in undisputed possession of said lands for over thirty years be- fore the defendant was authorized to take said lands as aforesaid, claiming the absolute title to the same and thereby the State of New York acquired absolute title to said lands by adverse possession and the defendant succeeds to the rights of the State as hereinbefore described and the possession of the State and defendant has been continuous, unbroken and adverse for forty years or more prior to the commencement of this action. Wherefore the defendant asks that the plaintiff's complaint be dismissed with costs. A. D. WALES, Attorney for Defendant. Precedent for Answer — Plea of Title by Purchaser. SUPREME COURT. DANIEL E. DONOVAN agst. JAMES H. VANDEMARK. ' 78 N. Y. 244. The above defendant, in answer to the complaint of the above plaintiff, respectfully shows to the court: First. He denies each and every allegation in said complaint con- tained. 62 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. g. Defences Legal and Equitable and how Pleaded. Second. As a second and further answer the defendant shows and denies that under the will of Andries Schoonmaker, deceased, the real estate described in the complaint in this action became vested in George Chambers, or that by such will the said George Cham- bers acquired any interest therein, or that by reason of such will, or the conveyance or order mentioned in said complaint, the above plaintiff became entitled to the possession of the real estate men- tioned in the complaint in this action, or acquired any right, title or interest therein. Third. As a third and further answer, the defendant shows that on or about the ist day of January, 1871, this defendant entered into an agreement in writing with the said Abraham E. Schoon- maker, who then was, and up to the time of the sale hereinafter men- tioned continued to be, the owner of said premises, which said agree- ment gave this defendant the use and occupation, and the right to quarry cement on that portion of said premises now in possession of this defendant for the term of ten years following the date of said agreement. That said agreement is now in force, and the defendant in possession in pursuance thereof, and that under such agreement this defendant has paid and expended large sums of money, to- wit: The sum of $10,000 in the improvement of said property and in the development of the same, and rendering the same useful for the pur- poses of this defendant, and that the greater part of such expendi- ture would be an entire loss if this defendant was ejected from said property. That under such agreement this defendant has paid, and the said Abraham E. Schoonmaker has received, large sums of money, to-wit: The sum of $5,000 as the rents of said property under the said agreement. That said agreement was made and said property improved and developed, and the said rents paid to the said Schoonmaker with the knowledge and consent of the said Chambers, and without any objection or protest on his part. That such improvements were made and such money paid and expended before July 26, 1875. Fourth. As a fourth and further answer, the defendant shows that the said Abraham E. Schoonmaker, being the owner of said prop- erty as aforesaid, on or about March 28, 1866, in connection with his wife, mortgaged said premises to Catharine Wells and Augustus Schoonmaker, Jr., administratrix and administrator of James Wells, deceased, in the sum of $825, and said mortgage was duly recorded in the Ulster county clerk's office; that said mortgage was subse- quently duly assigned to Frederick Schoonmaker by said mortgagees, which said assignment was also duly recorded in said clerk's office. That subsequently, default having been made in the payment of said mortgage, an action was commenced in this court in favor of the executors of the last will and testament of said Frederick Schoonmaker and against the said Abraham E. Schoonmaker and wife and others, for the purpose of foreclosing the said mortgage and selling the premises described therein. That such proceedings were had in said action; that a judgment of foreclosure and sale was entered therein in the Ulster county clerk's office on April, 23, 1875. That in pursuance of such judgment the said premises were subse- ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 63 Art. 10. What Rents and Profits are Recoverable and Receivership. quently duly sold at public auction at the court-house, in the city of Kingston, and purchased at such sale by James H. Vandemark, this defendant, for the sum of $1,400; and this defendant has received the referee's deed on such sale, which said deed has been duly recorded, and by virtue of which said mortgage, action, judgment and sale, this defendant became and now is the owner of said premises. Wherefore this defendant demands the judgment of this court dismissing said complaint with costs. F. L. & T. B. WESTBROOK, Defendant's Attorneys. ARTICLE X. What Rents and Profits are Recoverable and Receiver- ship. §§ 1496, 1497, 1 531. Sub. I. What damages can be recovered. 2. When receiver appointed. Sub. I. What Damages Can be Recovered. §§ 1496, 1497, 1531. § 1496. Plaintiff may recover damages vrith the land. In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for vsrith- holding the property. § 1497. Rents and profits to be included in damages. Those damages include the rents and profits or the value of the use and occu- pation of the property, where either can legally be recovered by the plaintiff. § 1531. Damages recoverable; set-off by defendant. In an action, brought as prescribed in this article, the plaintiff, where he recovers judgment for the property, or possession of the property, is entitled to recover, as damages, the rents and profits, or the value of the use and occupa- tion, of the real property recovered, for a term not exceeding six years; but the damages shall not include the value of the use of any improvements made by the defendant, or those under whom he claims. Where permanent improve- ments have been made, in good faith, by the defendant, or those under whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant, in reduction of the damages of the plaintiff, but not beyond the amount of those damages. As to the right to recover damages for withholding, see Van- dervoort v. Gould, 36 N. Y. 639. The former rule, as stated in Lamed V. Hudson, 57 N. Y. 151, was that rents and profits are not recoverable, unless pleaded ; they were there stated to be dis- tinct from damages for withholding, and it was held that a com- plaint could not be so amended on the trial as to include them ; 64 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. lo. What Rents and Profits are Recoverable and Receivership. this is changed by this section. Delisle v. Hunt, 36 Hun, 620. See 57 N. Y. 151, supra, commented on and rule appHed where pleading is proper form. Cagger v. Lansing, 64 N. Y. 417. A claim for damages for withholding possession of real estate does not include the rents and profits thereof during the time the property has been wrongfully withheld ; that is a separate and distinct cause of action. Lamed v. Hudson, 57 N. Y. 151. See, however, Cagger v. Lansing, 64 N. Y. 417; Grout v. Cooper, <) Hun, 326; Van Allen v. Rogers, i Johns. Cas. 281. But under the Code of Procedure, an action to recover land, for mesne profits, and for damages, could be maintained. Livingston v. Tanner, 12 Barb. 481; Hotchkiss v. Auburn, etc. R. R. Co. 36 Barb. 600; People, ex rel., v. Mayor, 17 How. 56; Vandervoort v. Gould, 36 N. Y. 639. And although the form of remedy is changed since the Revised Statutes, the principles applicable thereunder to the recovery of mesne profits are still to be applied to an action therefor. Holmes v. Davis, 19 N. Y. 488. Tenants in common, who have recovered in an action against a co-tenant, could unite in an action for mesne profits. Longen- dyck v.Burhans, 11 Johns. 461. Rents and profits cannot be recovered by one out of possession in an action to remove cloud from title. Bockes v. Lansing, 74 N. Y. 437, affirming 13 Hun, 38. Mesne profits are defined as those received while the prop- erty is withheld from its rightful occupant, and when he recovers possession, the right to mesne profits is said to follow the recovery. Sedgwick on Damages, vol. i, p. 250. It is said that the damages are not limited to the rent. Extra damages may be given. Dewey v. Osborn, 4 Cow. 338. In an action by devisees, their recovery is limited to the time when their title accrued ; all claims for rents and profits, prior to the testator's death, go to the personal representatives. Hotchkiss v. Auburn, etc., R. R. Co. 36 Barb. 600. The measure of damages is that which would apply in an action for use and occupation, what the premises were reasonably worth annually, with interest added; less than this would not give the plaintiff indemnity. Vandervoort v. Gould, 36 N. Y. 639; Wood- hnllv. Rosenthal, 61 N. Y. 382; Holmes v. Davis, 19 N. Y. 488; Low V. Purdy, 2 Lans. 422. When a defendant delivers posses- sion, he must also deliver possession of the growing crops. Lane V. King, 8 Wend. 584; Jackson v. Stone, 13 Johns. 447; Morgan ACTION TO RECOVER REAL TROPERTV (EJECTMENT). 65 Art. 10. What Rents and Profits are Recoverable and Receivership. V. Varrick, 8 Wend. 587; Samson v. Rose, 65 N. Y. 411. As to the method of apportioning mesne profits, see Woodliiill v. Rosen- thal, 61 N. Y. 382. In order that a defendant may have the benefit of the provi- sions of section 1531, relative to value of buildings erected by him, they must have been built while he was holding under "color of title adversely." Barley v. Roosa, 35 St. Rep. 898. The right to mesne profits follows a judgment in ejectment and defendant cannot dispute it. Benson v. JMatsdorf, 2 Johns. 369; Jackson V. Randall, 1 1 Johns. 405 ; Vaii Allen \. Rogers, 2 Johns. Cas. 281. And no defence could be set up in a subsequent action which would have been a bar in ejectment. After obtain- ing judgment for possession, plaintiff may bring an action for damages done to the land while in possession of defendant. Pieree v. Tuttle, i T. & C. 139; on appeal 58 N. Y. 650. Where a recovery is had in ejectment, and the plaintiff is put in posses- sion if the judgment is subsequently reversed and the premises restored to defendant, the action by defendant for the rents and profits during plaintiff's possession is in the nature of an action for use and occupation. Sheldon v. Van Slyke, 16 Barb. 26. Where the action is against the tenant, and he gives notice to his land- lord, in the absence of proof to the contrary, the landlord will be deemed to have assumed the defence and is bound by the judg- ment, and an action may be maintained against him for mesne profits without any other recovery against him. Van Alstine v. McCarthy, 51 Barb. 326. The measure of damages is the value of the use and occupation with interest added. Holmes v. Davis, 19 N. Y. 488; Vandervoort v. Gould, 36 N. Y. 639; Low v. Par- dee, 2 Lans. 422. It was said in Jackson v. Wood, 24 Wend. 443, that, in New York city, interest might be added quarterly in ascertaining mesne profits. Mesne profits cannot be recovered for more than six years ; the statute need not be pleaded. Grout v. Cooper, 9 Hun, 326; Jackson v. Wood, 24 Wend. 443; Budd v. Walker, 9 Barb. 493. Defendant can only be held for mesne profits for the period of his occupation. Byers v. Wheeler, Hill & Den. Sup. 389. In ejectment by a tenant for years, if the plaintiff's title expire pending the action, he is entitled to recover the value of the lease from the time of the unlawful entry for the residue of the term. Woodhull w. Rosenthal, 61 N. Y. 382. See same case for method [Special Actions — 5.] 66 ACTION ru RECUVEK REAL PROPERTY (EJECTMENT). Art. lo. What Rents and Profits are Recoverable and Receivership. of arriving at damages under peculiar circumstances. Where plaintiff claims mesne profits, it is too late on the trial to object to the form and particularity with which his allegations, with respect thereto, are made. Candee v. Burke, lo Hun, 350. In trespass for mesne profits, a boiia fide purchaser may be allowed the value of improvements made in good faith. Thomp- son V. Bower, 60 Barb. 463. The provisions of the Code, §§ 1496 and 1 53 1, providing for a recovery in an action of ejectment, as damages for withholding the property, the rents and profits, or the value of the use and occupation of the property, may be regarded as the legislative definition of the ancient technical term "mesne profits." The owner of the property withheld is not confined to the rents actually received by the party required to make restitution ; the owner should have either these or the rental value, as may be just under the circumstances. The mesne profits consist of the net rents and rental value or value of the use and occupation, and in ascertaining either, all necessary payments for ta.xes and ordinary repairs are to be deducted. Wallace v. Ber- dell, loi N. Y. 13. Where a vendor refuses to deliver possession to a vendee, it seems the remedy is ejectment, in which the ven- dee may recover mesne profits. Preston v. Hawley, loi N. Y. 586. A defendant who entered in good faith, and made permanent and valuable improvements, may apply their value to the extinc- tion of plaintiff's claim for mesne profits. Bedell v. Shazv, 59 N. Y. 46. It seems, one who has put improvements upon the lands of another, is, at the best, only allowed to thereby mitigate the damages by offsetting them to the extent of the rents and profits claimed; to do this he must be a bona fide occupant; he cannot be allowed them if he has acted with knowledge of the owner's rights. Wood v. Wood, 83 N. Y. 575. See Woodhull v. Rosen- thal, 61 N. Y. 382. Where, during the pendency of an action of ejectment brought by a lessor against a lessee under a condition giving a right to re-enter for non-payment of rent, the lessee sub-lets to one who, with full knowledge of the facts, puts in a crop which is harvested, but not removed at the time the lessor is put in possession, under a judgment in ejectment the crop be- longs to the lessor. Samson v. Rose, 65 N. Y. 411. The right of the true owner of lands is suspended as to recovery of rents and profits until he regains the right of possession. ACTION TO RECOVER REAL PROPERTY (EJECTM KNT) Art. lo. What Rents and Profits are Recoverable and Receivership. Bockes V. Lansing, 74 N. Y. 437. Trespass for mesne profits may be maintained by one tenant against another as a necessary sequence to a judgment in ejectment. Longendyck v. Burlians II Johns. 461. But only where there has been an ouster. Dresser v. Dresser, 40 Barb. 300. A claim for improvements under section 1531 does not constitute a cause of action, but a counterclaim. Pierson v. Safford, 30 Hun, 521. Where suit is brought to recover possession of real property and mesne profits from one who has discharged a paramount incumbrance in good faith, and in ignorance of the existence of the facts upon which the claim for possession and mesne profits is based, such holder is entitled to reimbursement for sums paid out by him in good faith in order to protect the property, and to have the same set off against the use and occupation. Clutc v. Emmerich, 26 Hun, 10 ; citing jWisner v. Bccknian, 50 N. Y. 338. A plaintiff is not entitled to recover mesne profits or damages for the wrongful withholding, until his right to recover the premi- ses is established and then only for the six years last, preceding- the trial. Gas Light Co. v. Rome, etc. Railroad Co. 24 St. Rep. 154; 51 Hun, 119; 5 N. Y. Supp. 559. Plaintiff is entitled to damages up to the date of the recovery and is not limited to the recovery of damages up to the date of bringing the action. Danziger v. Boyd, 120 N. Y. 628; s. c. 30 St. Rep. 889, affirming 12 St. Rep. 64. This is in accordance with the rule in Vandervoort v. Gojild, 36 N. Y. 646. But where the premises are surrendered pending the litigation, plaintiff is only entitled to recover damages up to the time of such surren- der. Gilmaii v. Gi/maji, 1 1 1 N. Y. 265, and it is held in Danzigcr V. Boyd, on hearing below, 54 Supr. 365, that plaintiff can only recover from time of taking title. Evidence of rental value is proper in an action to recover real property. White v. Wheeler, 22 St. Rep. 854. See, also, Dan- ziger V. Boyd, 54 Supr. 365, Where ejectment was brought against a railroad company to recover land constituting part of the public highway in front of plaintiff's premises and pending the action, the land was con- demned by the railroad corporation, it was held that plaintiff was not entitled to recover more than nominal damages for the with- holding of the land from his possession from the time of the rail- road company's first use thereof to the time of the award by the 68 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. lo. What Rents and Profits are Recoverable and Receivership. Commissioners of Appraisal. Judge v. N. V. C. & H. R. R. Co. 56 Hun, 60; s. c, 29 St. Rep. 475. The distinction which formerly existed between damages for wrongful withholding of land, recoverable in, and only in, an action of ejectment, and the mesne profits which might be recov- ered in an action of ejectment or in a subsequent action is abol- ished by the Code of Civil Procedure. Gas Light Co. v. Rone, etc. R. R. Co. 51 Hun, 119; s. c. 5 N. Y. Supp. 459; 24 St. Rep. 154. Where land is taken by eminent domain, by the State or by one of its divisions pursuant to its authority for public use, benefits may be set off not only to the damages to the remainder but also against the value of the part taken. Eldridge v. City of Binghamton, 30 St. Rep. 1007. Where a person built a house believing herself to be the owner of the premises, and made improvements without reference to the other owners, whose rights she disputed, it was held that she was not entitled to the sum laid out by her for permanent improve- ments. Stephenson v. Cotter, 25 St. Rep. 74. A defendant is not entitled to set off improvements made after he was expressly notified of plaintiff's claim and while claiming to hold exclusive of it. Henderson v. Scott, 6 Civ. Pro. R. 39. The party recovering should have either the rents and profits received, or the rental value, as may be just, but all necessary expenses for taxes and ordinary repairs are to be deducted. Wal- lace V. Berdell, loi N. Y. 13; s. c. 8 Civ. Pro. 363. A party need not pay mesne profits as a condition of granting a new trial. Risley v. Rice, 1 1 Civ. Pro. R. 367. While under the former Code only damages for withholding possession were incidental to a recovery by plaintiff in the action of ejectment, and the claim of rents and profits or for value of the use and occupation was a separate and distinct claim and so required to be separately pleaded, by the present Code, §§ 484, 1496 and 1497, this requirement is dispensed with and the inci- dental damages plaintiff is entitled to recover under his general demand, includes the rents and profits or value of the use and occupation from the time of the commencement of the action. Where in such an action, the landlord was made sole defendant and answered denying .simply the allegations in the complaint, demanding right to immediate possession and that such posses- ACTION TO RECOVER REAL PROPERTY (EJECTMEXT). 69 Art. 10. What Rents and Profits are Recoverable and Receivership. .sion was wrongfully withheld by defendant, it was held that it was not error to confine defendant upon the trial to the questions so presented ; that they having been presented upon sufficient evidence in plaintiff's favor, a judgment was proper awarding him possession, and that under the general demand for damages, plaintiff was properly allowed to prove and recover the annual rental of the premises from the date of the commencement of the action to the time of trial. It seems, however, a recovery of these items as part of the damages included in the general demand for a time prior to the commencement of the action, would not be proper. Clasou v. Baldwin, 129 N. Y. 183; 37 St. Rep. 213; modifying and affirming 56 Hun, 326. Where the court granted a motion by plaintiff for the direction of a verdict, which asked for mesne profits from the beginning of the action to the time of trial, and the computation was made on the basis of those dates, it was held that an observation of the judge in addressing the jury, that plaintiff was entitled to such profits for six years before the commencement of the action, was to be disregarded and afforded no ground for reversal. Clason v. Baldzvin, 68 Hun, 404, 52 St. Rep. 748, 23 Supp. 50. Where a railroad corporation has possession of land upon which its road was constructed in the usual manner, the owner of such land may maintain an action of ejectment to recover the posses- sion of his land so appropriated, and in such action plaintiff will on recovering judgment for possession, be entitled to recover damages for withholding the property and the rents and profits or value of the use and occupation by inserting proper allegations for that purpose in the complaint, and in such case an equity action for injunctive relief is not maintainable. Thomas v. Grand Vietv Beach R. R. Co. 76 Hun, 603. In Chacc v. Lai/iphcrc, 51 St. Rep. 108, it was held that the court erred in permitting plaintiff to recover for withholding the premises for a period of six years prior to the commencement of the action and also from the time of the commencement of the action down to the rendition of the judgment, making about twelve years, holding he was only entitled to recover for the period of six years; he would, however, be entitled to interest upon such damages from the time of the commencement of the action, citing Gas Light Co. v. Rome, Watertown and Ogdens- burgh R. R. Co. 51 Hun, 119, 24 St. Rep. 154. 70 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. II. Right to Recover against Occupants Separately. Where in an action of ejectment, the plaintiff recovers but fails to prove any damages resulting from an unlawful withholding of the land, he should be awarded nominal damages only. Sackett V. Thomas, 4 App. Div. 447. Sub. 2. When RECf:iVER Appointed. The court will not, pending an action of ejectment at the instance of the plaintiff, appoint a receiver of the rents of the premises in suit unless equities appear. People v. Mayor, 10 Abb. Ill ; Thompson v. Sherrard, 35 Barb. 593; Guernsey \. Powers, 9 Hun, 78; Bur dell v. Bur dell, 54 How. 91 ; Corey v. Long, 12 Abb. (N. S.) 427. See, however, Sheridan v. Jackson, 5 Week. Dig. 443; Ireland \ . Nichols, 37 How. 222. In Rogers v. Marshall, 6 Abb. (N. S.) 457, a receiver was appointed in an action to set aside a conveyance where it was shown defendants were irrespon- sible, and were collecting rents, and the premises were deteriorat- ing in value owing to the neglect of defendants, citing People v. Mayor, 10 Abb. 1 1 1, supra, as an authority in point. The appointment of a receiver of rents and profits pending the litigation, is improper in an action of ejectment brought against one in posses.sion under a contract of sale. Such remedy is in- consistent with the nature of the action and the relief sought. LaBau v. Huetzvohl, 39 St. Rep. 855 ; following Thompson v. Sherrard, 35 Barb. 593; citing Guernsey v. Powers, 9 Hun, 78; Bur dell V. Burdell, 54 How. 91. Where defendant in ejectment in order to avoid the appoint- ment of receiver gave an undertaking to secure the rents, and on the trial the defendant succeeded, but judgment was reversed and plaintiff finally had judgment for possession and the rental value, it was held that the undertaking was not merged in or superseded by the first judgment but remained operative and could be en- forced. Clutc v. Knies, 102 N. Y. 2,77- ARTICLE XI. Right to Recover Against Occupants Separately. §^ 1516-1518. ^ 1516. Rule when there are distinct occupants. Where there are two or more defendants, and it is alleged, in the answer of either of them, that he occupies in severalty, or that he and one or more of his co-defendants occupy jointly, one or more distinct parcels, and that one or more ACTION TO RECOVER REAL PROPERTY (EJECTMENT). /I Art. II. Right to Recover against Occupants Separately. other defendants possess other parcels, in severalty or jointly, the court may, in its discretion, upon the application of the plaintiff, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary. If the action is not so divided, and it appears upon the trial, that the allegation is true, the plaintiff must before the evidence is closed, elect against which defendant or defendants he will proceed; and a judgment dis- missing the complaint must thereupon be rendered, in favor of the other defendants. ^ 1517. The last section qualified. The last section does not apply to a case, where two or more defendants occupy different apartments in a building. In such a case, in an action to re- cover the building and its curtilage, the plaintiff is entitled to judgment jointly against all the defendants who are liable to him. 55 1518. When plaintiff may recover against one defendant subject to rights of others. Section 1516 of this act does not apply to a case, where one or more defend- ants, answering as therein prescribed, hold under another defendant, and the plaintiff elects to proceed against the latter, subject to the rights and interests of the former. In such a case, the proceedings against the defendant so answering must be stayed until final judgment; and if the plaintiff recovers final judgment against the defendant, under whom they hold, the judgment operates as a transfer to the plaintiff of that defendant's right, title, and inter- est, and the costs of the defendant or defendants so answering are in the discre- tion of the court. Section 15 17 is said by the codifiers to be new, but in accord- ance with Peai'ce v. Golden, 8 Barb. 522, affirmed, JZ/(5'. nom. Pearce V. Ferris, 10 N. Y. 280. Where conveyances were of separate parcels to different per- sons it was held that plaintiff could not bring a joint action against his grantees, and the purchaser from one of them. Voor- hisv. VoorJiis, 24 Barb. 150. Under the Revised Statutes, where in an action against four defendants to recover possession of land, the complaint stated that one of them originally claimed title to the premises and the others were in possession under him, and that the de- fendants unjustly withheld the po.ssession from the plaintiff, the answer merely denied the allegation of the complaint, as to withholding possession, and alleged that the one was the owner of and entitled to possession of the premises; on the trial it was proved by the defendants, subject to objection, that they occu- pied severally distinct parcels of the premises. Held, that, under the pleadings, the plaintiff was entitled to recover against all the defendants. Fosgat ex. Herkimer, etc. Co. 12 N. \'. 580. It was 72 AC riON TO RECOVER REAL PROPERTY (EJECTMENT). Art. 12. When Action will be Severed. held in Dillayc v. U^ilson, 43 Barb. 261, that the fact that defend- ant.s occupied distinct portions in severalty was matter of defence and must be set up by way of an answer. ARTICLE XII. When Action wtij. i5E Severed. §§ 1521, 1522, 1523. § 1521. Abatement of action. The provisions of title fourth of chapter eighth of this act, as applied to an action specified in this article, are subject to the qualification that the court may. in its discretion, proceed as prescribed either in that title or in the next two sections. g 1522. Action to be divided, when different persons succeed to different parcels. Where, upon the death of a party, different persons succeed to the decedent's title to, or interest in, different distinct parcels of the property sought to be re- covered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary; and that the successor to the title or interest of the decedent, to or in each distinct parcel, be substituted as plaintiff or defendant, as the case requires, in an action relat- ing thereto. § 1523, Id.; when different persons succeed to real property and to rents and profits. Where the .plaintiff seeks to recover damages for withholding the property, and, upon the death of a party, different persons succeed to the decedent's right or liability for those damages, and to his title to or interest in the property, the court may, upon motion made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, with the rents and profits thereof accruing after the decedent's death, the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plaintiff or defendant therein, as the case requires. Where plaintiff dies and his heir applies for leave to continue the action, it is not necessarj- that the widow should join in the petition or be made a party. Ash v. Cook, 3 Abb. 389. As to renewal and continuintj of action of ejectment after verdict, where some of the grantors in whose name it is brought, have died, see Doherty v. Matse/l, 9 Civ. Pro. R. 103. The parties seeking to continue the action must show that they have succeeded to such title as the plaintiff had. St. John v. Crool, 10 How. 253. Where one from whom land has been wrongfully taken, died with- out recovering possession, it was held that all damage done to the ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 73 Art. 13. Evidence. estate, and for the rents and profits down to the time of his death, went to his executor and belonged to his personal estate. HotcJi- kiss V. Auburn, etc. R. R. Co. 36 Barb. 600. In ejectment on behalf of sevend plaintiffs, if, after judgment, one of the plaintifTs dies, execution may issue in the names of all the plaintiffs. Hoivellv. Eldredgc, 21 Wend. 678. The death of the defendant in ejectment after verdict does not abate the action. Judgment may be entered as of the date of the recovery of the verdict. Diefcndorf v. House, 9 How. 243. When a grantee in land in the adverse possession of another brings ejectment in the name of his grantor and dies, the action may be continued in the name of his devisee. Ward v. Reynolds, 62 How. 183. In Moseley v. Moseley, 11 Abb. 105; Putnam v. Van Buren, 7 How. 31 ; Kissam v. Hamilton, 20 How. 369, under the Code of Procedure it was held that the death of a sole defendant abated the action. As to right of action against a party acquiring a defendant's title pending the litigation, see Moseley v. Albany Northern R. R. Co. 14 How. 71. As to what is necessary to be shown on application to revive action, see Boynton v. Hoyt, i Den. 53. An action in ejectm.ent having been brought by plaintiff and his sister as tenants in common, the sister died leaving by will all her property to her husband and the will was contested ; held that a severance of the action of ejectment was proper. Read v. Simon, 46 St. Rep. 729, 22 Civ. Pro. 196, 19 Supp. 457. The provision for the severance of an action of ejectment is for plaintiff's benefit and is to be made by plaintiff and is not avail- able to defendant. Henncssy v. Paulsen, 12 Misc. 384, d'j St. Rep. 343, 33 Supp. 638, 147 N. Y. 255 ARTICLE XIII. Evidence. Sub. r. When ouster to be proved. § 1515. 2. Wh.\t evidence is necessary and troper in ejectment. • Sub. X. When Ouster to be Proved. § 1515. When ouster to be proved. Where the action is broug;ht by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the 74 ACTION TO RFXOVER REAL PROPERTY (EJECTMENT). Art. 13. Evidence. defendant actually ousted him, or did some other act, amouniintc to a total denial of his right. To establish an adverse possession by one tenant in common such as will effect the ouster of his co-tenant, notice in fact to the latter, of the adverse claim, is required, or unequivocal acts, open and public, making the possession so visible, hostile, exclu.sive and notorious that notice may fairly be presumed. The giving and receiving a deed of a part of the premises by a co-tenant is not in itself an act so hostile to the rights of the co-tenants as to make an adverse possession. Edwards v. Bishop, 4 N. Y. 61 ; Culver V. Rhodes, 87 N. Y. 348. The general rule is that the pos- session of one tenant in common is the possession of his co-ten- ant ; Humbert v. Trinity Church, 24 Wend. 587; and one tenant in common is justified in taking po.ssession of the common prop- erty even though by stealth, if accomplished without breach of the peace. Wood v. Phillips, 43 N, Y. 152. And it is held that one co-tenant acts as agent for all the others. Ward v. Warren, 82 N. Y. 265. The possession of one tenant in common never bars that of his co-tenants since possession by a tenant in common and not adversely is in support of the common title. Kathan v. Rockwell, 16 Hun, 90; Jackson v. Tibbitts, 9 Cow. 241. The de- fendant must show himself a tenant in common before plaintiff is put to proof of ouster. Gillett v. Stanley, i Hill, 121 ; Sharpy. Ingraham,^. Hill, 116. It is said that a co-tenant or one claiming under him is the only party entitled to insist on such proof. Arnot V. Beadle, Hill & Denio's Sup. 181. The denial of plaintiff's right must be such as to amount to a disseizin of the co-tenant or as will establish an adverse posses- sion. Siglar V. fTrw Riper, 10 Wend. 414; Edmunds v. Bishop, 4 N. Y. 61 ; Sparks v. Leavy, 19 Abb. 364. An entry on the land claiming the entire property, denial of possession to co-tenant, sale of farm to a stranger and appropria- tion of proceeds, is an ouster. Clapp\. Bromagham, 9 Cow. 530. See, also, Jackson v. Smith, 13 Johns. 406, and both cases com- mented upon. Culver v. Rhodes, 87 N. Y. 352, which holds that to effect the ouster of a co-tenant there must be "an actual, visible, continued, notorious, distinct and hostile possession," and reviews the authorities on the point. Actual and exclusive possession of the property claiming the Avhole, taking title from a hostile source as against a co-tenant, ACTION TO RECOVER REAL PROPERTY (EJECTMENT). y$ Art. 13. Evidence. exclusive claim of title while in possession, exclusion of co-ten- ants, each constitutes an ouster. Florence v. Hopkins, 46 N. Y. 182; Clark V. Crego, 47 Barb. 617; Phelan v. Kelly, 25 Wend. 395; Grim v. Dyar, 3 Duer, 354; Smith v. Burt is, 9 Johns. 174; Jackson V. Brink, 5 Cow. 483 ; Trustees of Church v. Johnson, 66 Barb. 119; Valentine v. Northrup, 12 Wend. 494; Henderson v. Scott, 25 Hun, 303; Miller v. Piatt, 5 Duer, 272; Jackson v. 7>'^- ^zV/i', 9 Cow. 241 ; Humbert v. Trinity Church, 24 Wend. 587. A conveyance of the whole property, made by one or two co-ten- ants, to a grantee who claims to own the whole is an ouster. Henderson v. Scott, 6 Civ. Pro. R. 39. In Preston v. Smallwood, 48 St. Rep. 199, it was held that the facts did not justify finding of an ouster Sub. 2. What Evidence is Necessary and Proper in Ejectment. One bringing ejectment must show clearly that the lands in suit are included in the description. Finelite v. Sinnot, 5 N. Y. Supp. 439. Plaintiff must show that he or his ancestor's predecessor or grantor was seized or possessed of the premises within twenty years before the commencement of the action, but where the legal title is upheld possession is presumed. DoJierty v. Matsell, 16 St. Rep. 593. As to what evidence was held sufficient in peculiar cases, see Gallagher v. McKnight, 32 St. Rep. 1098; McRoberts v. Berg- man, 32 St. Rep. II II. Proof of occasional resort to the lands in question in the cutting of salt meadow grass is not sufficient to establish occu- pancy or possession in the absence of the deed describing and including the premises. Roberts v. Baumgarten, no N. Y. 380; s. c. 18 St. Rep. 162. A receipt briefly describing the land, signed by the mark of an alleged grantor without witness, is not proof that the person claiming was ever in possession of the deed. Abel v. Brewster, 34 St. Rep. 402. Statements in a purchase money mortgage as to the dimensions of the land conveyed to the mortgagor are not admissible in an action of ejectment against one who was a stranger to the trans- action, Burke V. Jackson, ^2 St. Rep. 364. 76 ACTION TO RECOVER REAL PROI'ERTV (EJECTMEiNT). Art. 13. Evidence. Evidence of improvements made to the property after notice was given by plaintiff to the defendant of the claim of ownership, was held to be properly excluded. Henderson v. Scott, 6 Civ. Pro. R. 39. In an action of ejectment wherein plaintiff claimed as the son and heir-at-law of one who died seized of the premises, the ques- tion at issue was, as to whether the mother of the plaintiff was, previous to his birth, married to the owner of the premises. The mother was called as a witness for plaintiff to prove the marriage, but her testimony was excluded as incompetent under section 829 of the Code. Held, error that the mother was not a person from, through or under whom plaintiff derived any title or interest, nor was she interested in the event of the action within the meaning of the Code. That a judgment in favor of the plaintiff would not be competent evidence either by way of admission or on the ground of estoppel in favor of the mother in an action brought by her to recover dower in the premises. A judgment in favor of the father of the mother of the plaintiff in an action brought against the father of plaintiff was received under objection and this was held to be error. Plaintiff offered to prove declarations of the alleged father made long subsequent to the time when the alleged marriage ceremony with the mother took place. The evidence was excluded below. On appeal it was held to be competent because it was a question of pedigree. Eisenlord v. Clum, 126 N. Y. 552. Where the General Term has construed a deed in favor of plaintiff, the declarations of the grantor before the execution of the deed to defendant, tending to establish a boundary other than that made by the deed, as so construed, are inadmissible upon a new trial. Harris v. Oakley, 26 St. Rep. 824. Declarations of a grantor made subsequent to the grant, although he was then in possession, are not admissible in an action of ejectment brought by his grantee to characterize such possession or show that the conveyance was not intended to be absolute. Williams v. Williams, 142 N. Y. 156, 58 St. Rep. 625. It is essential that the deeds introduced to show plaintiff's chain of title should contain such a description of the premises granted as to enable the court and jury to determine that it includes the premises in question. Jarvis v. Lynch^gi Hun, 349, 36 N. Y. Supp. 220, 70 St. Rep. 794. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). -J-J Art. 13. Evidence. The distances named in a description in a deed will not neces- sarily control. Race v. Steivart, 5 App. Div. 598, citing Robinson V. Kivic, 70 N. Y. 147. Where plaintiff shows a chain of title from a source acknowl- edged to be valid, he need not show possession in each of the intermediate grantees Proof of possession of two of them is sufficient, and where the answer admits possession by defendant it is only necessary for plaintiff to establish his right to posses- sion Arents v. Long Island R. R. Co. 89 Hun, 126, 34 Supp. 1085, 69 St. Rep. I. Where an answer alleges that the land had been in possession of defendant for forty years and used as a public square, evidence of acts of ownership by the village trustees prior to the date of plaintiff's deed, is admissible. Mangavi \ . President of Sing Sing, 86 Hun, 604, 33 Supp. 843, 67 St. Rep. 454. Where the purchaser was put in possession under a contract of sale, neither a map bearing his name as owner, nor an agreement between him and other parties as to a right of way, nor a deed by his vendor of adjoining property described as bounded by his land, is evidence of payment of the purchase price or delivery of the deed in an action of ejectment brought after the lapse of thirty years by the vendor's heirs. Griszvold v. Little, 13 Misc. 281, 34 Supp. 703, 68 St. Rep. 728. Monuments of early surveys in the forest when found and iden- tified are entitled to greater weight in determining boundaries than the courses and distances given by such surveys. Declara- tions of the occupants of land, made while pointing out a boundary line, are admissible in an action of ejectment, as the only effect of such evidence is to show the extent of their posses- sion. Skinner v. Odenbach, 85 Hun, 599, 33 Supp. 282, (yj St. Rep. 102. Anything tending to disprove plaintiff's allegations of seizin and right of possession, is admissible under a general denial. Hughes v. Hughes, 10 Misc. 180, 62 St. Rep. 488, 30 Supp. 937. A grant by the State, evidenced by a patent duly issued cannot be impeached collaterally upon the trial of an action of eject- ment. DeLancey v. Piepgras, 138 N. Y. 26, 51 St. Rep. 680. Plaintiff is not obliged to trace his title back of a common grantor. Zahmv. Dopp, 46 St. Rep. 920, 19 Supp. 863. The production of the deed with proof of possession under it or 78 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 14. Verdict. possession in the grantor is not sufficient evidence of title to put defendant on his defence. Bates v. Lidgerwood Mfg. Co. 20 St. Rep. 778. But where plaintiff establishes title by proper and sufficient conveyance and possession prior to the entry by defendant, and that entry is not attempted to be justified by any claim of right, the burden of -tablishing a better title than plaintiff's is cast upon defendant. Dunham v. Towjishcnd, 118 N. Y. 281, affirm- ing 43 Hun, 580, In an action of ejectment, a judgment-roll in an action of tres- pass for damages to personal property on the premises, brought against defendant's grantor after defendant had received his deed and taken possession, is inadmissible. Bennett v. Gray, 92 Hun, 86, 36 N. Y. Supp. 372, 71 St. Rep. 142. As to right of either party to a survey of lands in possession of the other to prepare for trial, see §§ 1682, 1683 and 1684 of-the Code. Plaintiffs are not estopped from the assertion of their legal rights by expenditures made by defendant on adjoining premises of which the plaintiffs had no knowledge. Goiivcrnciir v. National Ice Co. 33 St. Rep. i. Where plaintiff proved title back to the crown, and cutting of grass from meadows and fishing on the beach, Jield to show a clear title. McRoberts v. Bergman, 32 St. Rep. 1 1 1 1 No presumption of a grant arises from the mere fact that a person occasionally gave permission to cut grass upon unfenced and uncultivated land. Recitals in street opening proceedings as to ownership of property are no evidence of title in the persons named. Jarvis v. Lyjich,g\ Hun, 349, 36 N. Y. Supp. 220, 70 St. Rep. 794. ARTICLE XIV Verdict. §§ 15 19, 1520. ^ 1519. Verdict, etc., to state nature of plaintiflPs estate. A verdict, report, or decision, in favor of the plaintiff, in an action specified in this article, must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate is less than a fee. § 1520. Expiration of pljuntiflPs title before trial. If the right or title of the plaintiff, in an action specified in this article, expires after the commencement of the action, but before the trial, and he would have ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 79 Art. 14. Verdict. been entitled to recover, but for the expiration, the verdict, report, or decision must be rendered according to the fact; and the plaintiff is entitled to judgment for his damages for the withholding of the property, to the time when his right or title so expired. Where plaintiff proves title to a smaller quantity of land than he has claimed in his complaint he may recover according to his proof, and the complaint may be amended accordingly. Kellogg V. Kellogg, 6 Barb. 116. A variance between the description of the premises claimed in the complaint, and that shown on the trial, is not a failure of proof for which a non-suit should be granted. Russell v. Conn, 20 N. Y. 81. If the premises are sub- ject to an easement in favor of one not a party, judgment may award possession subject to the easement. Strong v. City of Brooklyn, 68 N. Y. i ; Reformed CJiurch v. Sehooleraft, 65 N. Y. 34. Such a judgment will not be ordered unless it appears that the defendant has been guilty of some unauthorized interference with plaintiff's rights. DeVVitt w. Village of It haea, 15 Hun, 568. If the plaintiff claimed in the complaint title to a whole lot and only proves title to an undivided part, he is entitled to a verdict in accordance with the proof, and if he proves title to any part claimed he is entitled to a verdict for the part to which he proves title, as a matter of right, and if such part be described in the ver- dict it is unnecessary to amend the pleadings to make them con- form to the proof. Vrooman v. Weed, 2 Barb. 330. To same effect Harrison v. Stevens, 12 Wend. 170; Van Alstyne v. Spraker, 13 Wend. 578; Bear v. Snyder, 11 Wend. 592; Max v. Thome, 2 Barb. 1 56 ; Van Rensselaer v. Jones, 2 Barb. 642 ; Neilson v. Neilson, 5 Barb. 565. Contra, Holmes v. Seely, 17 Wend. 75; Gillett V. Stanley, i Hill, 121 ; Cole v. Irvine, 6 Hill, 634. In Smith v. Long, 3 Civ. Pro. R. 396, it is held that under a claim for an entire piece of ground the plaintiff cannot, without an amendment, have judgment for an undivided part of it, but such amendment may be allowed on appeal. But where a complaint described twenty-five acres in a single parcel, the court'properly allowed an amendment to the complaint and recovery for eleven acres thereof. Barley v. Roosa, 35 St. Rep. 898, overruling Holmes v. Seely, 17 Wend. 75, and following Vrooman v. Weed, 2 Barb. 330. Citing Van Rensselaer v. Jones, 2 Barb. 643; Tricax v. Thome, 2 Barb. 156, Code, § 151 1. See as to power to permit amendment, Hinman v. Booth, 21 Wend. 267; Ryerss v. Wheeler, 22 Wend. 148. 80 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 15. New Trial and its Effect and Evidence Thereon. The judgment should specify the duration of the term — Olcn- dorfv. Cook, I Lans. 45 — and the nature and extent of plaintiff's interest where it is the fee subject to an easement. Rogers v. Sinshcimcr, 50 N. Y. 646. In case of expiration of plaintiff's title before verdict, the court may render judgment for the damages for withholding the premi- ses without judgment, for the possession. Lang v. Wilbraham, 2 Duer, 171. Where, after the trial and before decision of the appeal, the right and title of the plaintiffs expire, the court merely afifirms the judgment, but no execution for the possession is awarded. Olendorf v. Cook, i Lans. 37. No supplemental answer is necessary to give a defendant the benefit of this provi- sion. Langv. WilbraJiaui, 2 Duer, 171, S2ipra. The provision does not apply to ejectment for non-payment of rent where the plaintiff assigns his interest after suit brought. Van Rensselaer v. Oiven, 48 Barb. 61. A verdict in favor of the plaintiff in the action of ejectment should exactly define what land he is entitled to. De Clemente v. Winstanlcy, 8 Misc. 45, 59 St. Rep. 455, 28 Supp. 513. A judgment in favor of plaintiff in an action to recover real property or the possession thereof, must determine the duration of the term for which he can hold the premises. Where in an action brought to recover possession of real property by plaintiff as tenant of defendant, his right thereto expires after the com- mencement of the action, he is not entitled to a judgment for the possession of the premises or to the verdict and judgment pro- vided for by section 1520 of the Code. Lever v. Foote, 82 Hun, 393, 63 St. Rep. 840, 31 Supp. 356. ARTICLE XV. New Trial and its Effect and Evidence Thereon. §§ 1 525' 1526, 1527, 1528, 1530. § 1525. New trial may be granted. The court, at any time within three years after such a judgment is rendered, and the judgment-roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs, and all damages, other than for rents and profits or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judg- ment, and granting a new trial in the action. The court upon a like application made within two years after the second final judgment is rendered, and the judgment-roll is filed, may make an order vacating the second judgment, and ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 8 1 Art. 15. New Trial and its Effect and Evidence Thereon. granting a new trial, upon the like terms, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials shall be granted under this section. g 1526. Effect of judgment by default, etc. A final judgment for the plaintiff, rendered in an action specified in this article, otherwise than upon the trial of an issue of fact, is, after the expiration of three years from the filing of the judgment-roll, conclusive upon the defend- ant, and every person claiming from, through or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title. But within five years after the judgment-roll is filed, the court, upon the application of the defendant, his heir, devisee, or assignee, and upon pay- ment of all costs and damages awarded to the plaintiff, must make an order vacating the judgment, and granting a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascer- tained and established; but not otherwise. § 1527. Id.; exception in cases of disability. In a case specified in the last section, if the defendant is, at the time of the filing of the judgment-roll, either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the three years, specified in the last section; but such a defendant, his heir, devisee, or assignee, may commence an action for the recovery of the real property claimed, at any time within three years after the disability ceases; but not afterwards. § 1528. The last three sections qualified. The last three sections are not applicable, where the action is founded upon an allegation of rent in arrear; or in a case to which section 445 of this act is applicable. § 1530. Evidence on new trial. Upon a new trial, granted as prescribed in this article, the defendant may show any matter in defence, which he might show to entitle him to recover the possession of the property, if he was plaintiff in the action. The rules governing the appHcations for new trials in other civil cases are not rigidly enforced in ejectment, and a new trial is frequently ordered in that class of cases for reasons which would be considered insufificient in other cases. Jackson v. Laird, 8 Johns. 489; Jackson Y. Dickenson, 15 Johns. 309; Clayton v. Yar- rington, 33 Barb. 144. It was not the intention of the Legislature by the enactment of section 1525, to change the practice as to when orders for new trials might be made, but to fix with greater [Special Actions — 6.] 82 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 15. New Trial and its Effect and Evidence Thereon. certainty the exact date from which the absolute right to a new- trial runs, and not to exclude the defeated party from the advant- ages of anticipating the entry of judgment. Post v. Moran, 61 How. 122. The statute is imperative, and an order granting a new trial under it is not appealable to the Court of Appeals. Evans v. IVil- lard, 16 N. Y. 619. But the statute does not apply to an action to test the validity of an alleged devise — Marvin v. Marvin, Ct. App. II Abb. (N. S.) 102 — nor any other than strict legal pos- sessory actions in the nature of ejectment ; it does not apply to equitable actions or trespass; SJminway v. Shumway, ^2 N. Y. 143 ; nor to an action in equity to set aside conveyances when the decree would establish or destroy title to land. McConnell v. McCullough, 14 St. Rep. 621 ; s. c. 47 Hun, 405. The fact that plaintiff bought in defendant's interest in the premises at sheriff sale on execution on the judgment for costs, and took a sheriff's deed, does not preclude defendant from his right to move for a new trial. Phyfc v. Mastcrson, 45 Supr. Ct. 338. A judgment on a verdict on an inquest, where an answer has been interposed, is not a judgment by default so as to prevent defendant from having a new trial of right ; a judgment by default means one where no answer is interposed. Sacia v. O' Conor, 47 Supr. Ct. 53. In action between same parties — 79 N. Y. 260, afifirming 45 Supr. Ct. 633 — the right to a new trial is discussed by the court. Where a party who had purchased land subject to a mortgage, which she assumed, was evicted in ejectment, she set up such eviction in a subsequent action for deficiency on the mortgage ; she succeeded in the defence, but judgment of foreclosure and sale was rendered. Held, that the purchaser at the foreclosure sale was an assignee under this section, and could apply for a new trial in ejectment, and be made a party. Howell v. Lcavitt, 90 N. Y. 238. At the time of granting a new trial leave to amend by adding parties plaintiff may be granted. Martin v. Luke, 3 Hill, 478. In ejectment to enforce a forfeiture for non-payment of rent, the defendant is entitled to a new trial on payment of costs. Recdv. Loiicks, 61 How. 434. Contra, Christie v. Blooming dale, 18 How. 12. Where the complaint, in addition to the usual aver- ments, stated facts sufificient to warrant an application for a receiver, and asked for an injunction, accounting and receiver. ACTION TO RECOVliR REAL PROPERTY (EJECTMENT). 83 Art. 15. New Trial and its Effect and Evidence Thereon. the .suit was held to be ejectment and the defeated plaintiff en- titled to a new trial. Bucher v. Carroll, 19 Hun, 618. The three years are to be computed from the first judgment, not from its affirmance. Chautauqua County Bank v. White, 23 N. Y. 349. The courts do not, ordinarily, exercise the discretion to award a second new trial under the statute, but incline to remit the applicant to the ordinary rights of a defeated suitor by appeal, Bellinger V. Mart indale, 8 How. 113; Brown v. Crini, i Den. 665; Harris v. JVaite, 54 How. 113; Wright v. Milbank, 9 Bosw. 672 ; PJiyfe V. Masterson, 45 Supr. Ct. 338. A judgment may be opened on the ground that it was not de- fended through ignorance or mistake. Reed v. Loucks, 61 How. 434; Christie V. Bloomingdale, 18 How. 12, not approved. Where the plaintiff has been put into possession on a recovery in eject- ment, and, on appeal, a new trial is awarded, in which there is a verdict for defendant, he cannot have a formal judgment of resti- tution without a formal judgment of the court. Martin v. Rec- tor, 63 How. 362. The court, upon an application made within two years by a party in ejectment, against whom a second final judgment in eject- ment has been rendered, may make an order vacating the second judgment, and granting a new trial, upon the payment of all costs and damages, other than the payment of the rents and profits, if it is satisfied that justice will be thereby promoted, and the rights of the parties will be more satisfactorily ascertained and established, even though no error which would support an appeal has been committed, and though the evidence was sufficient to support the verdict of a jury, and there is no claim on the part of the applicant of surprise or newly-discovered evidence. The dis- cretion to be exercised by the court is legal as well as judicial, and must have some reason for its support. The question as to whether or not there is any substantial ground for the exercise of the discretion, is subject to review by the Appellate Court, upon an appeal from the order made by the court below. Kcelcr v. Dennis, 39 Hun, 19. Plaintiff recovered judgment and was put in possession of the premises; defendant paid the costs and took a new trial under the statute; thereupon, plaintiff, still retaining possession under the statute, moved for leave to di.scontinue on payment of costs. Held, that in denying the motion the court below did not exceed 84 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 15. New Trial and its Effect and Evidence Thereon. its discretionary powers. The rule is, that a plaintiff cannot dis- continue without the payment of costs and the entry of an order. Carltofi V. Darcy, 75 N. Y. 375. The party seeking a new trial is required to pay all costs and damages, other than for rents and profits or for use and occupation ; but where the damages included what is technically known at common law as mesne profits, the party is not required to pay them as a condition. Risky v. Rice, II Civ. Pro. R. 367. Section 1526 was drafted by the codifiers so as to eliminate the words " on default " in speaking of the entry of judgment, to avoid the controversy said to have arisen in Lang v. Ropke, i Duer, 701, and in Christie v. Bloomingdale, 18 How. 12. The phrase " judgment-roll is filed " has also been substituted for the word " docketed " in the statute, by reason of the decision in Sheridan v. Andrews^ 49 N. Y. 478. That provision of the stat- ute was also construed in SJieridan v. Linden, 81 N. Y. 182, where it was held that a judgment by default in ejectment was not con- clusive against persons claiming under defendant unless it was for three years docketed in the of^ce of the clerk of the court in which it was rendered. The judgment book which was required to be kept by the Code of Procedure was a different book from the docket book, and it must be entered in the latter to be suffi- cient. In Saciaw. O' Conor, 47 Supr. Ct. 53, it is said judgment by default means judgment on failure to answer. In Howell \. Leavitt, 90 N. Y. 238, the question being as to who is an assignee within the meaning of this and the preceding section, so as to en- title him to the benefit of the provision granting a new trial, it is said by the court that the purpose of the provision is to furnish opportunity to establish a title which has already been held not to exist, and to permit a second trial of a disputed title. A judgment rendered on default in ejectment for non-payment of rent may be vacated where justice will be promoted thereby. Reedv. Loncks, 61 How. 434. As to granting a new trial in ejectment for rent, see Reed v. Loucks. Section 445 relates to cases where the summons is served otherwise than personally within the State. The decision in Christie v. Bloomingdale, 18 How. 12, is followed as to the provi- sions first named. As to when a purchaser at a foreclosure sale is an assignee under sections 1525 and 1526, see Howell v. Leavitt, 90 N. Y. 238. ACTION TO RECOVER REAL PROPERTY (EJECTMENT). I Art. 15. New Trial and its Effect and Evidence Thereon. The section is mandatory and the court is not called upon to make any judicial determination. Gasz v. Strick, 30 St. Rep. 226; s. c. 9 N. Y. Supp. 408. Where a new trial was granted under this section, it was held that the requirement of the payment of an extra allowance was pToper although it was not advised. Wing v. De La Rionda, IJ St. Rep. 404,20 Civ. Pro.R. 183, 13 Supp. 793, affirmed, without opinion, 126 N. Y. 680. Where one of the defences in an action of ejectment was ad- verse possession and there were two trials and defendant availed herself of the right to a new trial under .section 1525 and paid the costs required, it was held that plaintiff should not be allowed to amend by bringing in another party plaintiff who claimed to be interested in the property because it would present a new issue. Crowley v. Murphy, 12 St. Rep. 114; s. c. 10 N. Y. Supp. 698, 19 Civ. Pro. R. 46. The grounds upon which a new trial will be granted in eject- ment are discussed fully in note to Risly v. Rice, 1 1 Civ. Pro. R. 367. The provisions of the Code of Civil Procedure (subd. i, sec- tion 191) prohibiting a review in the Court of Appeals of an order of General Term granting a new trial, except upon a stipulation for judgment absolute in case of an affirmance, includes actions of ejectment. Upon the trial of an action of ejectment, judgment was awarded upon findings of fact, in favor of the plaintiff, which, upon appeal, was reversed by the General Term and a new trial ordered. Plaintiff appealed to the Court of Appeals, giving the required stipulation, for judgment absolute in case of affirmance. The order was affirmed and judgment absolute duly entered in the court below against plaintiff upon the remittitur. Held, that the plaintiff, by the stipulation, waived the right to a new trial given by the Code of Civil Procedure (sections 1524, 1525) to a party in such an action against whom a judgment there was not based upon the trial of an issue of fact, but solely upon the consent of the party making the stipulation ; and that the right of review secured by the stipulation was a sufficient consideration for it. Roberts v. Baumgarten, 126 N. Y. 336, 37 St. Rep. 482, 27 Abb. N. C. 12, affirming 34 St. Rep. 586, 58 Supr. 407, 11 Supp. 699. An action to declare a trust in real property and to compel the defendant to convey the same to plaintiff is not an action to 86 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 15. New Trial and its Effect and Evidence Thereon. recover real property in which a party is entitled to a new trial under section 1525. This section includes only an action at law to recover possession of land. Strictly it does not include actions in equity to set aside conveyances when the decree would estab- lish or destroy title to land. McConnell v.McCollough, 47 Hun, 405; s. c. 14 St. Rep. 621. In Purdy v. Bennett, 68 Hun, 227, 51 St. Rep. 876, 22 Supp. 817, the respondent was entitled under section 1526, upon a pecu- liar state of facts, to open judgment and interpose defence. Where a complaint alleged ownership of real estate and a forci- ble entry and retainer, and demanded treble damages, it was held that the action could properly be considered as one of ejectment and plaintiff was entitled to a new trial under section 1525. Compton V. " The Chelsea;' 139 N. Y. 538, 54 St. Rep. 843, re- versing 70 Hun, 361, 54 St. Rep. 112, 24 N. Y. Supp. 241. The motion to set aside a prior order obtained for a new trial in ejectment, to modify the judgment and execution, with leave to again move for a new trial, is one addressed to the discretion of the court, and its order thereon is not appealable to the Court of Appeals. De Lancey v. Piepgras, 141 N. Y. 88, 56 St. Rep. 651. Section loi i of the Code requiring the appointment of another referee where a new trial of an action tried before a referee named in the stipulation is granted, unless the stipulation for reference provides otherwise, applies to a new trial in ejectment granted under section 1525. Brozvn v. Root Manufacturing Co. 76 Hun, 159, 57 St. Rep. 301, 27 Supp. 551, affirmed 148 N. Y. 294, 42 N. E. Rep. 729. A party, by bringing an action in equity to set aside a deed, instead of an action of ejectment, thereby waives any right to a new trial under this section. Butts v. Fillmore, 45 St. Rep. 452. Upon a trial in ejectment an extra allowance was granted plaintiff which was included in a judgment in his favor, defendant took a new trial and paid all the costs up to that time including extra allowance ; defendant claimed that an extra allowance could not be made upon a second trial, this was held untenable, taking a new trial was in effect bringing a new action and the payment of the costs including extra allowance did not prevent the grant- ing of another extra allowance on the trial. Wing v. Dc La Rionda, 131 N. Y. 422; Bolton v. Schriever, 135 N. Y. 65. ACTION TO RECOVER REAL I'Rdl'KR IV (EJECTMENT). 8/ Art. i6. Effect of Judgment. Sureties on an undertaking given on appeal by defendant in ejectment, are released when defendant pays the costs, obtains an order vacating the judgment and comes back for a new trial of the action pursuant to the statute ; but where such an undertak- ing in addition to the usual provisions contains a covenant that the sureties will pay " the value of the use and occupation " of the premises, the sureties are liable for such use and occupation during the pendency of the appeal. Clason v. Ke]ioe, 87 Hun, 368. The effect of vacating the judgment and granting a new trial upon the possession is considered under " Effect of Judgment " Art. XVI. ARTICLE XVI. Effect of Judgment. §§ 1529, 1524. § 1529. Possession not to be changed by vacating of judgment, except, etc. Where the plaintiff has taken possession of real property by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment, except as prescribed in section 1525 or section 1526 of this act. In such a case, if the defendant thereafter recovers final judgment in the action, it must award to him the restitution of the possession of the property; and he may have an execution thereupon for the delivery of the possession to him, as if he was plaintiff. i^ 1524. EfTect of judgment rendered after trial of issue of fact. Except in a case where it is otherwise expressly prescribed in this act, a final judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through, or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as pre- scribed in article ninth of this title. Under the Code of Procedure the defendant's remedy under § 1529 was to apply to the court to show cause why possession should not be delivered to him and an order was then granted on the hearing to show cause. Daiolcy v. Broivn, 43 How. 17. Where a judgment in ejectment recovered by plaintiff was re- versed and new trial granted upon which defendant recovered a verdict and entered judgment for restitution of the premises to him, Jteld, that although not regular to insert such a provision in the judgment without an order of the court, the defendant was 88 ACTK^X TO RECOVER REAL PROPERTY (EJECTMENT). Art. i(). Effect of Judgment. entitled to such relief on application to the court. Martin v. Rector, 28 Hun, 409. Restitution will be ordered as of course, but without prejudice to the rights, if any. of a purchaser pendente lite. Costar v. Peters, 4 Abb. (N. S.j 53. Where a recovery by plaintiff was set aside and new trial ordered and plaintifT asks to submit to a voluntary non-suit, on the new trial, it was held that defendant having pleaded a claim to resti- tution of the premises which have been surrendered under the previous judgment, defendant had a right to prove the facts and take a judgment for restitution, and that as the premises were leasehold premises, judgment should not provide generally for the possession. Conger v. Dnryee, 34 Hun, 560. A judgment to recover possession of land takes all structures wrongfully erected upon it. De Lancey v. Piepgras, 73 Hun, 607, 56 St. Rep. 835, 26 Supp. 806. Where, after a grant of land bounded by the side of the high- way to the center of which the grantor owned, the highway was discontinued and the successor of the grantor brought ejectment for the strip in front of the premises conveyed; held, that although he was entitled to possession it was subject to the right of the grantee to have the part of the former highway in front of his premises kept open. Holloway v. Soiithniayd, 139 N. Y. 390, 54 St. Rep. 676. Where the defendant, pending an action of ejectment, acquires the interest of plaintiff's co-tenants, the judgment should not direct its removal, as neither party in such a case is entitled to exclusive possession. Archibald v. .V. Y. C. cr H. R. R. Co. i App. Div. 251, 37 N. Y. Supp. 336, 72 St. Rep. 689. It was not the intention to alter the former practice in relation to ejectment by inserting the words " and the judgment-roll is filed " in sections 1525 and 1526 as a substitute for the previous provisions as to " docketing " the judgment. Post v. Moran, 62 How. 122. A judgment in ejectment is only conclusive as to the title established, and parol proof may be given to show the grounds of it, where such grounds do not appear of record, provided the grounds alleged to have been passed upon could legitimately have been proved under the issues. Briggs v. Well, 12 Barb. 567. The judgment is only conclusive as to the parties to the action. A judgment against tenants and actual occupants is not conclusive in an action against the person under whom such occu- ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 89 Art. r6. Effect of Judgment. pants held, for mesne profits. Ainslee v. Mayor, etc. of New York, I Barb. 168. A judgment against tenants is not conclusive on the landlord, although he retained counsel to defend the tenants, especially where his title did not come in question. Ryerss v. Rippey, 24 Wend. 432, affirmed, 4 Hill, 468. The effect of a judgment is the same as in any other action ; it binds parties and privies. Bcebe v. Elliott, 4 Barb. 457. And the filing of a lis pendens does not make the judgment binding upon persons not parties or privies. Thompson v. Clark, 4 Hun, 164. See Wilson v. Davol, ^ Bosw. 519; Dnnekle v. Wiles, 6 Barb. 515; Briggs v. Wells, 12 Barb. 567; Finnegan v. Carraher, 47 N. Y. 493; Sheridan v. Andrews, 49 N. Y. 478. A former judgment may be an estoppel, though no land is described in the record, or the description is incomplete, or in part unintelligible if parol evidence is given showing what lands were the subject of litigation. Frantz v. Irela^id, 4 Lans. 278; Wood v. Jackson, 8 Wend. 9. A judgment-roll in a former action by a grantee of plaintiff's ancestors against defendant to recover the same lands, wherein it was adjudged the grantee was entitled to possession, is conclusive proof of the right of possession in the grantor, and the statutory right of redemption did not vary its effect as between parties and privies. Caggcr v. Lansing, 64 N. Y. 417, affirming 4 Hun, 812. In a judgment on a " Manor Lease " plaintiff is entitled to pos- session of the premises. Van Rensselaer v. Whitbeck, 2 Lans. 498. By virtue of a judgment in ejectment, and without a writ of pos- session, plaintiff may take possession of the premises if he can do so peacefully. People, ex rel. v. Cooper, 20 Hun, 486. A judg- ment in ejectment is only conclusive, under the statute, as to the title actually litigated and established in the action ; it is not the recovery which constitutes an estoppel in a subsequent action, but the decision of the question which was contested between the parties. In case of plea of former suit in bar, the point is whether the same title is sought to be litigated in both actions; if not, the former action is not a bar. Dawley v. Brown, 79 N. Y. 390, reversing 9 Hun, 461. A judgment in ejectment is not con- clusive, nor is it evidence against a third person who enters into possession under a tax lease, though he subsequently acquires title through the defendant in ejectment. Sheridan \. Andrezvs, 49 N. Y. 478, affirming 3 Lans. 179. 90 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. 17. Costs in Ejectment. ARTICLE XVII. Costs in Ejectment. The costs in ejectment are regulated by the Code. § 3228, as follows : "The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions : " I. An action, triable by a jury, to recover real property, or an interest in real property ; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial." See § 3248 as to certificate of judge. Where the claim of title to real property arises on the plead- ings, and plaintiffs recover a verdict, they are entitled to costs as of course. Dcinpsey v. Hall, 35 Supr. Ct. 201 ; Nilcs v, Lindsley, 8 How. 131. This is true only in actions at law, and does not apply to equitable actions. Law v. McDonald, 9 Hun, 23. And if the question of title is raised by the pleadings, an admission of title on the trial will not affect the question of costs. Dunckel v. Farley, i How. 180; Nilcs v. Lindslcy, 8 How. 131 ; Hiibbcllv. Rochester, 8 Cow. 115. If the title to lands be not put in issue by the pleadings, nor necessarily proved on the trial, plaintiff can- not have costs if he recover less than $50. Bnrnet v. Kelly, 10 How. 406. A plaintiff is not entitled to costs on the ground that title came in question where he has unnecessarily framed his complaint so as to require defendant to set up a plea of title, and defendant has succeeded on the plea. Learn v. Currier, 15 Hun, 184, affirmed 70 N. Y. 525. In an action of ejectment, by vendor against vendee, for default in payment of purchase-money, the defendant, if successful, is entitled to costs. CytJie v. Lafontai7i, 51 Barb. 186. The statutory provisions exclude the discretion of the court in awarding costs where title is in question, so that it is error to award costs contrary to statute. Boardway v. Scott, 31 Hun, 378. The certificate of the judge that title came in question is conclu- sive. Nilcs w. Lindslcy, 8 How. 131. But not when it is appa- rent from the pleadings title was not in question. Squires v. Lenard, 16 How, 478. Where title is in issue, and found to be in defendant, the fact that plaintiff recovers nominal damages for ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 9 1 Art. 17. Cost in Ejectment. injury to chattels does not entitle him to costs. Biirhans v. Tib- bitts, 7 How. 74. A claim of possession is not a claim of title and where the gist of the action is possession, title is not in question, Rathbonc v. McConnell, 20 Barb. 311, affirmed, 21 N. Y. 466. In ejectment to recover two distinct parcels of land, where the plain- tiff recovered but one parcel, held, that both plaintiff and defend- ant were entitled to costs, although the complaint contained but one count. Coon v. Dicfcndorf, 8 Civ. Pro. R. 293. It seems that costs upon a recovery in ejectment, by the lessor, against a tenant under a perpetual lease, after default in payment of rent, may be retaxed upon the application of a mortgagee of the lease- hold who seeks to redeem, upon payment of back rent, costs, etc. Keelcr v. Kceler, 102 N. Y. 30. Where a suit before a justice is dismissed on a plea of title, if the defendant, on another action being brought in the Supreme Court, demurs to the same complaint that was presented in Jus- tice Court, the plaintiff is entitled to costs though he recover less than $50. Locklin v. Casslcr, 50 How. 43. A party taking a new trial in ejectment under the statute, cannot, upon a recovery thereon, tax costs for the proceedings had before the granting of the order for a new trial. Carnes v. Piatt, 40 Supr. Ct. 203. Granting a new trial in ejectment upon the payment of part of defendant's costs, determines the right to prior costs, and the plaintiff, if he succeeds, is not entitled to tax them. Provost v. Far r ell, 13 Hun, 303. Where the controversy was with regard to whether or not the eaves of the buildings of one party projected over the property of the other and the complaint contained a count in ejectment and the answer put in issue the ownership of the land occupied by defendant's buildings and many other facts, it was held that the action was to recover real property and within the meaning of section 3228 and that plaintiff was entitled to costs. Leprell V, KleinscJnnidt, 112 N. Y. 364. See ■}^'] St. Rep. 404; Whig v. De La Rionda, 141 N. Y. 422. Where a new trial was had under the statute an extra allow- ance may be granted without reference to the fact that such an allowance was made on a former trial. Wi?ig v. De La Rionda, 141 N. Y. 422; Bolton v. Schreiver, 135 N. Y. 65; see authori- ties cited under new trial, Art. XV. 92 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. i8. Execution in Ejectment. ARTICLE XVIII. Execution in Ejectment. Under the Revised Statutes, provision was made for a writ of possession on behalf of a plaintiff recovering judgment in eject- ment in accordance with the common law practice, and its form was prescribed by the Repealing Act ; this section was repealed, and no express provision made in this chapter. The execution takes the place of the writ of possession in use, under the former practice. Section 1240, subd. 2, provides for execution in ejectment. See, also, § 1675. Such an execution must be issued to the county where the property is situated. § 1365. The provisions of §§ 1364 and 1373 of the Code of Civil Proce- dure are ample, and prescribe the form of execution in such case. By § 1364 one of the kinds of execution is described as " For the delivery of the possession of real property, with or without dam- ages, for withholding the same," and the provisions of § 1373 are as follows: " An execution for the delivery of the possession of real property, or a chattel, must particularlv describe the property, and designate the party to whom the judgment awards the possession thereof ; and it must substantially require the sheriff to deliver the possession of the property, within his county, to the party entitled thereto. If a sum of money is awarded by the same judgment, it may be collected, by virtue of the same execution ; or a separate execution may be issued for the collection thereof, omitting the direction to deliver possession of the property. If one execution is issued for both purposes, it must contain, with respect to the money to be collected, the same directions as an execution against property, or against the person, as the case requires." The general principles governing an execution doubtless gov- ern the writ of possession, the remedy being substantially the same. The judgment is a sufificient warrant for the writ of pos- session. Jackson v. Havi/and, 13 Johns. 229; People w. Cooper, 20 Hun, 486; Witbeck v. Van Rensselaer, 64 N. Y. 27. The sheriff, while he has the writ, may remove the defendant, or his privies, from the property as often as he, or they, intrude upon it ; 64 N. Y. 27, supra ; and the same case holds that the writ could be legally executed after the return day, the presumption being that its execution was commenced before that time. s. c. 2 Hun, 55. It is the duty of the sheriff to remove from the premises the per- sonal property of the defendant; People v. Cooper, 20 Hun, 486; ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 93 Art. 18. Execution in Ejectment. Witbeck V. Va7i Rensselaer, 64 N. Y. 27, supra ; al.so all persons, who claim to hold possession in the right of the defendant. Jackson v. Tattle, 9 Cow. 233. As between a successful plaintiff in ejectment, and the defendant, the crops belong to plaintiff. Lane v. King, 8 Wend. 584; Gillett v. Balcovi, 6 Barb. 370. Where lands are recovered subject to an easement, the plaintiff has a right to the delivery of the lands, subject to the easement. Reformed Church V. Schoolcraft, 65 N. Y. 134. The execution of a writ of posses- sion, issued in ejectment for non-payment of rent, must be an open, visible and notorious change of possession, a merely nomi- nal and secret execution of the writ is not sufficient, and the sheriff's return is not conclusive on that point. Neivell v. Whig- ham, 102 N. Y. 20, distinguishing ]Vitbeck v. Van Rensselaer, 64 N. Y. 27; Brozvning v. Ha) ford, 5 Den. 86; Baker v. Me- Dujfie, 23 Wend. 289; Fiteh v. Devlin, 15 Barb. 47. Where twenty years have elapsed since the recovery of the judgment, the granting of the application for leave to issue exe- cution or a writ of possession is discretionary and not appeal- able. \^an Rensselaer v. IVright, 31 St. Rep. 897; s. c. 121 N. Y.626. Plaintiff must show an actual ouster in order to recover. Gil- man V. Oilman, 11 1 N. Y. 265; Earnshaiv v. Myers, 17 St. Rep. 703- Where judgment for the plaintiff in ejectment, which had been aflfirmed at General Term, was reversed by the Court of Appeals, the Special Term has the power to and will issue a writ of posses- sion to restore the premises in question to the defendant, although the judgment of the Court of Appeals does not provide for the issue of the writ. Carlton v. Mayor, 50 Su]:)r. Ct. 177; s. c. 5 Civ. Pro. 418. Where a defendant in ejectment, after the plaintiff has been put in possession by virtue of an execution issued upon the judg- ment, takes forcible possession, a new action is not necessary, but the court has authority to direct the restoration of pos.session to the plaintiff and restrain the defendant from interfering therewith. DeLancey v. Piepgras, 73 Hun, 608, 56 St. Rep. 181, 26 Supp. 807, affirmed, 141 N. Y. 88, 56 St. Rep. 651. An execution issued upon a judgment for an undivided inter- est in real estate which commands the sheriff to put plaintiff in possession of the whole, is irregular and if it has been so exe- 94 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. i8. Execution in Ejectment. cuted, the court will order restitution to the defendant of hi.s in- terest in the premises. Skinner v. OdenbacJi, 8i Hun, 315, 62 St. Rep. 598, 30 Supp. 624. Section 1373, authorizing the writ of possession which provides that if a sum of money is awarded it may be collected by virtue of the same execution, only intends that the plaintiff may insert in the writ of po.ssession a mandate to collect any money adjudged to him but not that the money must be so collected or that it can be collected without the insertion of a mandate to that efTect. Van Rensselaer v. Wright, 56 Hun, 39. The appeal was dis- missed, 121 N. Y. 626, the opinion holding that the judgment awarding possession terminates the lease and can only be satisfied by restoration of the land ; if it fixes the amount of rent in arrears, that simply bears upon the defendant's right of redemp- tion, he having the privilege of averting the effect of the judg- ment by paying up his arrears of rent. Precedent for Execution to put Plaintiff in Possession in Ejectment. The People of the State of New York, to the sheriff of the coimty of Ulster : Whereas, A judgment was rendered on the 2 2d day of June, 1887. in the Supreme Court, in an action in said court, wherein Daniel E. Donovan was plaintiff, and James H. Vandemark was defendant, in favor of the plaintiff and against the defendant, for the delivery to the defendant of the possession of the following-described premises (insert description in judgment), and also for the recovery by the said Daniel E. Donovan against said James H. Vandemark, for $2,350 damages, and $731.02 costs of this action, in all the sum of $3,081.02 damages and costs; the judgment-roll upon which judg- ment was filed in Ulster county clerk's office on the 22d day of June, 1887, and docketed on the same day, and the sum of $3,081.02, with interest thereon from the 22d day of June, 1887, is actually due thereon: Now, therefore, you are hereby required to deliver the possession of the said real estate, above described, within your county to the said Daniel E. Donovan, plaintiff, and to satisfy the said judgment of $3,081.02, with interest thereon as aforesaid, out of the personal property of the said judgment debtor; and if sufficient personal property cannot be found, out of the real property belonging to him, at the time when said judgment was docketed in the clerk's office of the county of Ulster, or at any time thereafter, and to ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 95 Art. 19. Ejectment for Non-payment of Rent and Procedure Thereon. return this execution to the clerk of the county of Ulster, within sixty days after the receipt hereon. Witness, Hon. Alton B. Parker, one of the justices of said court at Kingston, on this 22d day of June, 1887. JOHN E. VAN ETTEN, Attorney for Plaintiff. ARTICLE XIX. Ejectment for Non-payment ok Rent and Procedure Thereon. §§ 1 504-1 510. § 1504. When action may be brought for non-payment of rent. When six months' rent or more is in an arrear, upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee, or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear, or re-entry on the property. ^ 1505. Id. ; when right of re-entry is reserved for want of distress. Where a right of re-entry is reserved and given to a grantor or lessor of real property, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of rent due, the re-entry may be made, or an action to recover the property demised or granted, may be maintained by the grantor or lessor, or his heir, devisee, or assignee, at any time after default in the payment of the rent; provided the plaintiff, at least fifteen days before the action is com- menced, serves upon the defendant a written notice of his intention to re-enter, personally, or by leaving it at his dwelling-house on the premises with a person of suitable age and discretion; or, if the defendant cannot be found with due diligence, and has no dwelling-house on the premises, whereat a person of suitable age and discretion can be found, by posting it in a conspicuous place on the premises. § 1506. Action against tenant, when proceedings to be stayed. At any time before final judgment for the plaintiff is rendered, and the judg- ment-roll is filed, in an action brought as prescribed in either of the last two sections, the defendant may pay or tender to the plaintiff or his attorney, or pay into court, all the rent then in arrear, with interest and the costs of the action to be taxed; and thereupon the complaint must be dismissed. § 1 507. Id.; amount of rent in arrear to be stated in judgment. In such an action, a verdict, report, or decision in favor of the plaintiff, must fix the amount of rent in arrear to the plaintiff, or, if judgment is taken by de- fault, the amount thereof must be ascertained by or under the direction of the court; and, in either case, it must be stated in the judgment. § 1508. Id.; when possession to be restored to defendant. At any time within six months after possession of the property, awarded to the plaintiff in such an action, has been delivered to him by virtue of an execu- g6 ACTION TO RECOVER REM. PROPKK'l V (EJECTMENT) Art. 19. Ejectment for Non-payment of Rent and Procedure Thereon. tion issued upon a judgment rendered therein, the defendant, or any person who has succeeded to his interest, or a mortgagee of the lease, or of any part thereof, who was not in possession when final judgment was rendered, may pay or tender to the plaintiff, or his executor, administrator, or attorney, or may pay into court, for the use of the person so entitled thereto, the amount of rent in arrear, as stated in the judgment, and the costs of the action, with interest, and all other charges incurred by the plaintiff. §1509. The same. Within three months after making the payment or tender, the person who made it, or his representative, may apply to the court for an order that posses- sion of the property be delivered to him; and thereupon, upon proof of the facts, and payment of the sum due by reason of rent accruing since the judgment was rendered, and upon compliance with all other terms to be complied with by the grantee or lessee, to the time of the application, the court must make an order, directing that possession of the property be delivered to the applicant, who shall hold and enjoy the same, without any new grant or lease thereof, according to the terms of the original grant or lease. Notice of the application must be served upon the plaintiff's attorney. § 1510. Id.; use of property, when set off against rent. If possession of the property recovered has been delivered to the plaintiff, by virtue of an execution issued upon a judgment in the action, the order must provide for setting off the sum which the plaintiff has made, or which he might, without willful neglect, have made, of the property during the possession there- of, against the rent accruing after the judgment was rendered, and for re- imbursement to the applicant of the balance, if any, of the sum paid into court by him, after making the set-off prescribed in this section. Either the grantor of a lease in fee reserving rent, or his a.ssignee of the rent, may maintain ejectment upon non-payment of the stipulated rent. Tyler \. Hcidorii, 4.6 Barb. 439; J^an Rensselaer V. Sliiii^erla)ul, 26 N. V. 580. Ejectment for non-payment of rent is not limited to rent service, but applies to all cases where there was a right to re-enter at common law. Van Rensselaer v. Ball, 19 X. Y. 100. But it is said it is not proper unless the lease gives a right of re-entry. Va)i Rensselaer v. jfeiuett, 2 N. Y. 141. In Par melee v. Ostvcgo, ete. R. R. Co. 6 N. Y. 74, it is held, that, upon breach of a condition annexed to a lease for years, the estate ceases without entry, and the lessor, or any one succeed- ing to the estate, may have ejectment to recover possession, except where the lease expressly provides that the lessor shall enter. In an action to recover possession for non-payment of rent, a de- mand need not be alleged, or notice of intention to re-enter. Mayor v. Campbell, 18 Barb. 156. In Martin v. Rector, 43 Hun, 371, it is held, that to maintain ejectment by re-entry for non-pay- ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 9/ Art. 19. Ejectment for Non-payment of Rent and Procedure Thereon. ment of rent reserved in a lease, and an insufficiency of goods whereon to distrain, as provided by such lease, it is necessary to allege and prove the giving of the fifteen days' notice provided for by this section. Ejectment for non-payment of rent lies by the assignee of the lease ; Main v. Green, 32 Barb. 448 ; or by the personal representatives of assignee of a life lease. Mosher v. Yost, 33 Barb. 277. Ejectment for rent cannot be maintained where, by summary proceedings, the lease has been terminated. Stiiyvesant v. Griss- ler, 12 Abb. (N. S.) 6. Where the tenants of a large tract parti- tioned among themselves without the privity of the landlord, it must appear that there was not a sufficient distress upon any part, before he can maintain ejectment upon any part. Jackson v. VVyckoff, 5 Wend. 53. The provision requiring notice of intention to re-enter may be waived by a provision in the lease, that " if the yearly rent is not paid at the time appointed, the landlord may re-enter on the premises and re-possess them." Hosford v. Ballard, 39 N, Y. 147. After forfeiture has accrued for non-payment of rent, it may be waived by the lessor, by acts as well as words, and it will be so waived, and the right of action lost, if he then does any act which amounts to an acknowledgment of an existing tenancy, as receiv- ing rent due at a subsequent quarter; Collins v, Hasbrouck, 56 N. Y. 157; or, if he distrains for that in arrears, or receives such arrears, and gives a receipt therefor, in which he calls the party paying his tenant. Jackson v. S/icldon, 5 Cow. 448. If the land- lord is ignorant of the forfeiture, the receipt of rent is no waiver. Jackson V. Brownson, 7 Johns. 227. It is also held, that the receipt of rent is not a waiver, unless such rent accrued after for- feiture, and then it validates the lease only to the time of pay- ment. But that, if the lessor, with a full knowledge of the for_ feiture, accepts rent which fell due after that event, he waives such forfeiture. Jackson v. Allen, 3 Cow. 220. A devisee of one who has granted land in fee, subject to rent, cannot maintain ejectment for rent accruing prior to the death of the testator, but only for what has accrued since. Vati Rensselaer v, Hayes, 5 Den. 477. The lessor is presumed to have taken possession at the time of the service of the complaint, and when he takes pos- session at the termination of the action, such possession relates back. Samson v. Rose, 65 N. Y. 411. In ejectment for rent the [Special Actions — 7.] 98 ACTION TO RECOVER REAL PROPERTY (EJECTMENT), Art. 19. Ejectment for Non-payment of Rent and Procedure Thereon. tenant may show a partial eviction from the easement by way of counterclaim, and is not put to his cross action. Blair v. Claxton, 18 N. Y. 529. Proof of actual entry or demand of possession is not necessary before bringing ejectment, where the condition of the lease is forfeited. Hosford v. Ballard, 39 N. Y. 147 ; Crugcr V. McLaury, 41 N. Y. 219; Plumb v. Tubbs, 41 N. Y. 442. Dis- tress being abolished the provision making the absence of sufifi- cient property a condition of re-entry for non-payment of rent, ceases to be operative. Van Rensselaer v. Snyder, 13 N. Y. 299. The following are the provisions of the Revised Statutes still in force, relating to notice to tenant as a condition precedent to ejectment (9th ed. p. 18 19): § 7. Wherever there is a tenancy at will, or by sufiferance, created by the ten- ant's holding over his term, or otherwise, the same may be terminated by the landlord giving one month's notice, in writing, to the tenant, requiring him to remove therefrom. § 8. Such notice shall be served by delivering the same to such tenant, or to some person of proper age, residing on the premises, or if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises where it may be conveniently read. § g. At the expiration of one month from the service of such notice, the land- lord may re-enter or maintain ejectment, or proceed in the manner prescribed by law, to remove such tenant without any further or other notice to quit. It is a fundamental principle that as between landlord and ten- ant, the tenant is estopped from disputing the title of the landlord or claiming under a title hostile to that under which he entered, or a title which he acquired during his tenancy. Jackso7t v. McLeod, 12 Johns. 182; Jackson v. Harder, 4 Johns. 202 ; Ver- nam v. Smith, 15 N. Y. 327; Territt v. Cowenhoven, 79 N. Y. 400; Colton V. Harper, 5 Wend. 246; Jackson v. Hinman, 10 Johns. 292; Tompkins \. Snow, 6-^ Barb. 525. This is upon the principle that the landlord if compelled to litigate the title must be put in as good a position by his tenant as when he gave him possession. Glen v. Gibson, 9 Barb. 638. The landlord cannot, however, maintain ejectment during the term against the tenant for non-payment of rent unless there is a clause in the lease giving the right of re-entry for condition broken and then only, on com- pliance with the statute cited, as to notice. Va?i Rensselaer v. Jewett, 2 N. Y. 141 ; Tyler v. Heidorn, 46 Barb. 439; Delancy V. Ganong, 9 N. Y. 25; Hosford v. Ballard, 39 N. Y. 147. As to \ ACTION TO RECOVER REAL PROPERTY (EJECTMENT). 99 Art. ig. Ejectment for Non-payment of Rent and Procedure Thereon. what constitutes a waiver of such right, see Conger v. Duryca, 12 Week. Dig. 225; Jackson v. Sheldon, 5 Cow. 448; Ireland v. Nichols, 46 N. Y. 413. The tenant may show title out of the landlord where the latter's title has expired since the creation of the tenancy. Jackson v. Rozvland, 6 Wend. 66(); Hoag v. Hoag, 35 N. Y. 469; Armstrong v. Wheeler, 9 Cow. 88. As to remedy by ejectment against tenant for waste, see Vcrplank v. WrigJit, 23 Wend. 506; Jacksoii v. Broumson, 7 Johns. 227; People V. Alberty, 11 Wend. 162; Livingston v. Reynolds, 26 Wend. 115; McGregor v. Brozvn, 10 N. Y. 114; Erwin v. Olm- sted, 7 Cow. 229; Suffern v. Townsend, (^ Johns. 35; Cooper v. Slower, 9 Johns. 331 ; Phillipps v. Covert, 7 Johns, i ; Schermer- horn V. Biiell, 4 Den. 422. As to when the landlord may re-enter on breach of condition, see Stuyvesant v. Davis, 9 Paige, 427 ; Parmelee v. O. & S. R. R. Co. 6 N. Y. 74; Collins v. Hasbrouck, 56 N. Y. 157; Morton v. Weir, 70 N. Y. 247. Where the issue is one of title only, no demand or notice is necessary. Wood v. Wood, 18 Hun, 350, affirmed, 83 N. Y. 575; Eysarnan v. Eysa- man, 24 Hun, 430. A tenant for the life of another, who continues in possession after the death of such life tenant, is not entitled to notice to quit. Livingston v. Tanner, 14 N. Y. 64. The receipt of rent under a lease void by the Statute of Frauds does not render it valid, but in such case there must be notice to quit. Reedcr v. Sayre, 70 N. Y. 1 80; Lonnsbery V. Snyder, 31 N. Y. 514. To entitle a tenant holding over a term to notice, the holding over must be for such time as to authorize the implication of assent to such continuance by the landlord. ScJmyler v. Smith, 51 N. Y. 309; Conway v. Starkweather, i Den. 113. Where a party enters upon land for an indefinite period by permission of the owner, even if no rent is reserved, he becomes a tenant-at- will and is entitled to notice to quit. Burns v. Bryant, 31 N. Y. 453; Lamed v. Hudson, 60 N. Y. 102; Post v. Post, 14 Barb. 253. As to the right of tenant to notice, after committing such waste as to terminate the tenancy, see Harris v. Fink, 49 N, Y. 24. The right of the tenant to notice may be waived by him by provision in the lease. Hosford v. Ballard, 39 N. Y. 147. So the landlord may waive his right of action which has accrued by service of notice, by receiving rent. Prindle v. Atiderson, 19 Wend. 391 ; Collins v. Hasbrouck, 56 N. Y. 157. The notice lOO ACTION TO RECOVER REAL PROPERTY (EJECTMENT). Art. ig. Ejectment for Non-payment of Rent and Procedure Thereon. cannot be served by leaving it at the tenant's place of business in his absence. Banks v. Carter, 7 Daly, 417. Where lessors had given notice of their election, to avail them- selves of a right to terminate a lease for non-payment of rent, and the lessees then tendered the rent, which was refused, held, that the lessees could maintain an action to restrain the lessors from summary proceedings to recover the premises, and enforcing the forfeiture. Norton v. N. Y. C. & H. R. R. R. Co. 12 Abb. N. C. 30. A lease is not so defeated by rent in arrears, but that on pay- ment of the rent, the rights of the tenant are reinstated. Holden v. Sackett, 12 Abb. 473. The six months in which lessees or per- sons claiming under them may redeem, commence running from the date of the eviction of defendant in possession, under the writ of possession. Newell v. Wigham, 16 Week. Dig. 295; Whit beck V. Van Rensselaer, 64 N. Y. 27. The Revised Statutes — 2 R. S. 506, § 36 — for which this is a substitute, provided for filing a bill within six months after exe- cution, and made no provision as to the conditions on which relief was to be granted. It was held, under the statute, that a lessee or tenant might redeem, by paying or tendering to the landlord, the rent in arrears and costs in an action to re-enter, for non-payment of rent, whether the action at common law or under the statute, and might have an action in equity for that purpose. Coming v. Beach, 26 How. 289. To maintain ejectment by re-entry for non-payment of rent reserved in the lease and insufficiency of case whereon to retain his property by such lease, it is necessary to allege and prove the giving of the fifteen days' notice provided for by § 1505. Mar- tin V. Rector, 43 Hun, 371. The Van Rensselaer leases come under these sections and no demand is necessary under them. Martin v. Rector, 118 N. Y. 476, 30 St. Rep. 27, reversing 43 Hun, 371. In an action to recover the premises on the ground that six months or more rent was in arrears, it was held that the right to re-enter for non-payment of rent was not limited to the case of default of sufficient distress, but that the general condition autho- rizing a re-entry in case of a breach of either of the covenants, applied to the covenant to pay rent and that therefore to main- tain an action it was not necessary to show that before the com- 1 ACTION TO RECOVER REAL PROPERTY (EJECTMENT). lOI Art. ig. Ejectment for Non-payment of Rent and Procedure Thereon. mencement of the fifteen days, notice in lieu of a distress for rent, required by § 1505, before the bringing of an action of ejectment where a right of re-entry is reserved in default of a sufificient dis- tress, was given. Martin v. Rector, 118 N. Y. 476. The requirement of § 1507, that the amount of rent in arrears, must be " fixed " in a judgment of ejectment, is only intended to enable the defendant to avail himself of §§ 1508 and 1509 authorizing a redemption of the land by the payment of the amount of rent due with interest and costs; it confers a privilege upon the defendant and does not create a judgment against him. Where under a judgment in ejectment the plaintiff is entitled to take possession at once of the land, and the defendant has a right on the payment of a certain sum to retain possession or to recover it within six months after it has been lost, and the defendant remains in possession for more than twenty years, the presump- tion is that the defendant has at some time during this period paid the necessary sum and thus become entitled to keep posses- sion. Van Rensselaer v. WrigJit, 56 Hun, 39, 29 St. Rep. 468. Chureh v. Seeley, no N. Y. 457, discusses the construction of § 1507 and other sections relating to this matter of ejectment be- tween landlord and tenant. CHAPTER II. PARTITION.* PAGE. Article i. Nature of action and jurisdiction of the courts 104 2. Partition by parol and by agreement. Sees. 1590, 1591, 1592,1593 106 3. When action may be brought and by whom. Sees. 1532, i533> 1537- Rule 65 108 4. Restrictions and regulations as to partition by an infant. Sees. 1534, i535, 153^ 122 5. Necessary and proper parties in partition. Sees. 1538, 1539, 1594, 1540, 1588 133 6. Complaint to state interests of parties. Sec. 1542, 146 7. Matters of practice. Sec. 1541 162 8. Receiver 173 9. What questions may be tried in the action and in what manner. Sees. 1543, 1544 174 10. Reference as to title and as to creditors. Sees. 1545. 1561, 1562 179 11. Interlocutory judgment. Sees. 1546, 1563, 1572, 1573, 1574, 1575 194 12. Dower interest and how affected by sale. Sees. 1567, 1568, 1569, 1570, 1571. Rules 70, 68 212 13. Sale, report of sale and confirmation, re-sale. Sec. 1576 220 14. Final judgment, its contents and effect. Sees. 1577, 1578, 1579, 1580, 1581, 1582, 1583, 1584, 1585, 1586, 1589, 1595 230 15. Application for moneys paid into court. Sees. 1564,1565,1566. Rule 69 255 16. Actual partition. Sees. 1547, 1548, 1549, 1550, 1551, 1552, 1553, 1554, 1555, 1556, 1557, 1558, 1559, 1560, 1587 - 257 Sections of the Code of Procedure and Where Found in this Chapter. SEC. art. page. 1532. When action for partition may be brought 3 ^08 1533. Id.; by remainderman 3 1^7 1534. Id.; by an infant 4 122 *The law and practice of partition in this State is treated Knapp on Parti- tion. Freeman on Co-tenancy and Partition treats the subject in its general aspect. The subject is also fully considered in article " Partition," American and English Encyclopedia of Law. 1 102I PARTITION. 103 Sections of the Code and Where to be Found in this Chapter. Sections of the Code — Continued. SEC- ART. PAGE. 1535. Guardian ad litem; how appointed 4 124 1536. Security 4 131 1537- When heir may maintain action for partition of devised property 3 120 1538. Who must be parties 5 133 1539. Who may be made parties 5 134 1 540. Id. ; as to persons having liens 5 145 1541. Provision, where a party is unknown 7 162 1542. Complaint to state interests of parties 6 146 1543. Title of parties may be tried 9 174 1544. Issues of fact, triable by jury 9 178 1545. When title to be ascertained by the court 10 179 1546. Interlocutory judgment 11 194 1547. Partial partition; when made 16 257 1548. Shares may be set off in common 16 258 1549. Appointment of commissioners 16 258 1550. Commissioners to be sworn, etc 16 258 1551. Id. ; when to make partition 16 25S 1552. Partition; how made 16 259 1553. Provision where there is a particular estate 16 259 1554. Report of commissioners 16 265 1555. Fees and expenses 16 266 1556. Confirming or setting aside report 16 266 1557. Final judgment on report; effect thereof 16 269 1558. Judgment must direct delivery of possession 16 269 1559. Costs; how awarded. Id.; against unknown parties 16 269 1560. Sale of property; when directed 16 270 1 561. Reference to inquire as to creditors 10 190 1562. Duty of referee 10 igo 1563. Money to be paid into court 11 199 1564. Application for money 15 255 1565. Payment of incumbrances 15 255 1566. Other parties not to be delayed 15 255 1567. Sale of dower interest 12 212 1568. Purchaser to hold the property free therefrom 12 212 1569. Gross sum to be paid to or invested for tenant in dower, etc . . 12 212 1570. Interests of owners of future estates to be protected 12 213 1 571. Married woman may release her interest 12 213 1572. Unknown owners 11 199 1573. Sale; terms of credit thereupon il 199 1574. Credit; how secured , 11 199 1575. Separate securities 11 199 T 576. Report of sale 13 220 T 577. Final judgment; effect thereof 14 230 1578. Id.; effect thereof upon incumbrancers 14 231 1579. Costs and expenses; how paid 14 252 1580. Distribution of proceeds 14 242 I04 PARTITION. Art: I. Nature of Action and Jurisdiction of the Courts. Sections of the Code — Continued. SEC. ART. PAGE. 1581. Shares of infants 14 242 1582. Id.; of unknown and absent owners 14 231 1583. Id. ; of tenants of particular estates 14 233 1584. Court may require security to refund 14 233 1585. Security to be taken in name of county treasurer 14 233 1586. Action thereupon 14 233 1587. Compensation to equalize partition 16 273 1588. Proceedings on death of parties 5 142 1589. Rents, etc., may be adjusted 14 250 1590. Partition by guardian of infant, committee of lunatic, etc 2 107 1591. Contents of petition 2 107 1592. Court may authorize partition 2 107 1593. Effect of releases 2 108 1 594. When the State is interested 5 135 1595. Exemplified copy of judgment may be recorded 14 233 ARTICLE I. Nature of Action and Jurisdiction of the Courts. Sub. 1. Character of the action. 2. Jurisdiction of the courts. Sub. I. Character of the Action. Partition is the division which is made among several persons of lands, tenements, hereditaments, goods or chattels, technically- applied to the division of real estate between co-parceners, ten- ants in common and joint tenants. Bouvier, Law Dictionary, title Partition. The proceedings for partition at common law were exceedingly cumbersome and unsatisfactory, and at an early day statutory en- actments were made regulating the division of estates among joint tenants and tenants in common, and at a later day, chancery, without further legislative sanction, began to exercise jurisdiction in suits of partition, and the writ of partition which had been the process at common law fell into disuse and was finally abolished and the Court of Chancery obtained exclusive jurisdiction. In this country, in some of the States, jurisdiction in partition is exercised exclusively by probate courts, in others by the law courts, and in still others it is a matter exclusively of equity juris- diction. Freeman on Co-tenancy and Partition, § 420 et seq. Partition is a matter of right as well at common law as by statute. PARTITION. 10=; Art. I. Nature of Action and Jurisdiction of the Courts. Gallic V. Eagle, 65 Barb. 583; Chimi v. Keith, i Hun, 589; Tripp V. Riley, 15 Barb. 334; Smith v. Smith, 10 Paige, 470 ; Haywood v. Judson, 4 Barb. 228. The fact that an issue joined in partition is triable by jury does not change the equitable char- acter of the action. Jones v. Jones, 5 St. Rep. 610. Sub. 2. Jurisdiction of the Courts. The Supreme Court, by virtue of its general equity powers as successor to the Court of Chancery, under § 217, Code of Civil Procedure, has jurisdiction in partition — also the county courts under § 340. Doubleday v. Heath, 16 N. Y. 80. The Supreme Court has no original inherent power to partition and sell the real estate of infants, and proceedings for that pur- pose are authorized alone by the Legislature, and the limits im- posed upon them are controlling on the court. Miiller v. Stripp- inan, 6 Abb. N. C. 343. See Bullymore v. Cooper, 46 N. Y. 236. The court obtains jurisdiction in an action to partition lands although there is no land situate in the county which the sum- mons and complaint name as the place of trial. Kimball v. Mapes, 19 Week. Dig. 481, affirmed 98 N. Y. 629. The Supreme Court, sitting at Special Term, has all the juris- diction, both legal and equitable, of the Court of Chancery and the former Supreme Court in proceedings for partition, and is to conduct the same in conformity with the statutes. It may take such action as the condition of the pleadings and issues requires, and issues of fact may be sent to a jury. Hewlett v. Wood, 3 Hun, 736, affirmed, 62 N. Y. 75. The verdict stands on same footing as in other trials. Clapp v. Bromagham, 9 Cow. 530. The omission to require a bond from the guardian ad litem, for each of the several infants, does not deprive the court of jurisdic- tion. Reed v. Reed, 13 Civ. Pro. R. 109. The Supreme Court has jurisdiction, in law and equity, and has jurisdiction of all actions of partition. It is its province to decide whether, in any given case, to award a partition or a sale, and if its decision is erroneous, the remedy is by appeal. Clemens v. Clemens, ■^'j N. Y. 59. The Supreme Court has jurisdiction in partition as in proceedings quasi in rem., i. e., general jurisdiction over the sub- ject matter of the action. Fahey v. Jenkins, 73 N. Y. 355. After sale in partition, the court has jurisdiction, upon a distribu- tion of the proceeds, to pass upon the validity of a mortgage io6 PARTITION. Art. 2. Partition by Parol and by Agreement. upon an undivided share, though not formally put in issue by the pleadings. Halstcadv. Halstcad, 55 N. Y. 442. By an agreement not to question the jurisdiction of the courts of this State in a partition suit, some of the land being situated in other States, and not to institute similar suits in those States, on the performance of all the conditions of the agreement by one of the parties, the other will be estopped from denying the juris- diction of the courts in this State and be precluded from bring- ing similar actions in other States. He will not be heard to say that because certain other parties are not parties to this agree- ment that the provisions therein cannot be carried into effect. Bowen v.Durant, 43 Hun, 248, 6 St. Rep. 535. A suit in parti- tion is a suit in rem. Van Orman v. Phillips, 9 Barb. 500 ; Cor- nithew. Griffing, 21 Barb. 9. For the history of legislation on the subject in this State, see Mead v. Mitchell, 5 Abb. 92, and s. c. 17 N. Y. 210. When husband and wife were joint owners and the grantee of the husband brought partition but did not make the wife a party, it was held the court did not acquire jurisdiction and that the judgment was a nullity. G Conor v. McMahon, 7 Supp. 225. As to what facts give jurisdiction in an action of partition and when county court has jurisdiction, see Bell v. Gittere, 30 St. Rep. 219. ARTICLE II. Partition by Parol and by Agreement. Sub. 1. Partition by parol. 2. Partition by agreement. §§ 1 590-1 593. 1590-1593- Sub. 1. Partition by Parol. A parol partition carried into effect by possession taken under it, will be sufficient to sever the premises. Jackson v. Harder, 4 Johns. 212; Mount v. Morton, 20 Barb. 123; Jackson v. Vosbiirgh, 9 Johns. 276; Byerss v. Wheeler, 25 Wend. 434. And partition by parol binds the heirs of each tenant. Wood v. Fleet, 36 N. Y. 499. Where the grantee in a deed is entitled to certain lands to be located, although he is tenant in common until such location, the location in conformity with the deed completes title to the lands selected. Jackson w. Livingston, 7 Wend. 136; Cor bin v. Jackson, PARTITION. 107 Art. 2. Partition by Parol and by Agreement. 14 Wend. 625. A parol partition can only give to each the vested and contingent interests the co-tenants then have, a subse- quently acquired interest is not affected by it. Carpenter v. SchermcrJiorii, 2 Barb. Ch. 322. Where the husband perfects a voluntary partition, dower attaches to his share and the others are released. Jackson v. Edwards. 22 Wend. 512; Wilkinson v. Parish, 3 Paige, 658. As to when an agreement to partition lands in another State will estop a party from denying the jurisdiction of the courts of this State, see Bowen v. Durant, 43 Hun, 248. It seems a parol partition may be made provided each party takes and retains exclusive possession of the portion allotted to him ; the parol agreement alone cannot terminate the unity of pos- session ; a right in the nature of an easement cannot be so cre- ated. Taylor v. Millard, 118 N. Y. 244. Sub. 2. Partition by Agreement. §§ 1590, 1591, 1592, 1593. § 1590. [Am'd, 1895.] Partition by guardian cf infant, committee of lunatic, etc. Where an infant, idiot, lunatic, or habitual drunkard, holds real property, in joint tenancy or in common, the general guardian of the infant, or the commit- tee of the idiot, lunatic, or habitual drunkard, may apply to the supreme court or to the county court of the county, wherein the real property is situated, for authority to agree to a partition of the real property. § 1591. Contents of petition. Such an application must be by a petition, which must describe the real prop- erty proposed and to be partitioned; must state the rights and interests of the several owners thereof; must specify the particular partition proposed to be made; and must be verified by affidavit. The court may order notice of the application to be given to such persons as it thinks proper. § 1592. [Am'd, 1886.] Coiart may authorize partition. If, after due inquiry into the merits of the application, by a reference or otherwise, the court is of the opinion that the interests of the infant, or of the idiot, lunatic, or habitual drunkard will be promoted by the partition, it may make an order authorizing the petitioner to agree to the partition proposed, and in the name of the infant, or of the idiot, lunatic, or habitual drunkard, to exe- cute releases of his right and interest in and to that part of the property which falls to the shares of the other joint-tenants or tenants in common. The court may, in its discretion, for the furtherance of the interests of said infant, idiot, lunatic, or habitual drunkard, direct partition to be so made as to set off to him or them his or their share in common with any of the other owners, provided the consent in writing thereto of such owners shall be first obtained. I08 PARTITION. Art. 3. When Action may be Brought and by Whom. § 1593. Effect of releases. Releases so executed have the same validity and effect, as if they were exe- cuted by the person in whose behalf they are executed, and as if the infant was of full age, or the idiot, lunatic, or habitual drunkard was of sound mind, and competent to manage his affairs. Under Chapter 472, Laws 1880, husband and wife might parti- tion lands between themselves by agreenunt, and such partition would bar dower. This act was repealed by Chapter 272, Laws 1896, Domestic Relations Law, and § 26 of that act provides that husband and wife " may make partition or division of any real property held by them as tenants in common, joint tenants, or tenants by the entireties." ARTICLE in. When Action may be Brought and by Whom. §§ 1532, 1533. 1537- Rule 65. Sub. I. When action may be brought by joint tenants or tenants in COMMON. § 1532. Rule 65. 2. When remainderman can maintain the action. § 1533. 3. When heir may maintain action. § 1537. Sub. I. When Action may be Brought by Joint Tenants or Tenants in Common. § 1532. Rule 65. § 1532. When action for partition may be brought. Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made, without great prejudice to the owners. Rtile 65. Partition, to embrace all lands held in common — infants. Where several tracts or parcels of land, lying within this State, are owned by the same persons in common, no separate action for the partition of a part thereof only, shall be brought without the consent of all the parties interested therein, and, if brought without such consent, the share of the plaintiff may be charged with the whole cost of the proceeding. And when infants are interested, the petition shall state whether or not the parties own any other lands in common. Partition may be maintained as to lands in which the State has an interest under § 6 of Public Lands Law, Chapter 1 1 General Laws, and § 273 Fish, Game and Forest Law, Chapter 31 General Laws. All parties must be tenants of all lands to be divided ; Jackson V. Myers, 14 Johns. 354; Manolt v. Brush, 3 Law Bull. 66; but PARTITION. 109 Art. 3. When Action may be Brought and by Whom. the omission to allege that the parties to the action do not own any other lands in common in the State, is not a ground of demurrer. It was not the object of the rule to establish a rule of pleading; an omission to make averment is at most irregularity. Pitchardv. Draft, 32 Hun, 417. The party bringing the action must be in either actual or constructive possession of the lands sought to be partitioned. O' Dougherty v. Aldrich^ 5 Den, 385 ; Howell V. Mills, 7 I>ans. 193; Florence v. Hopkins^ 46 N. Y. 182; Therasso7i v. White, 52 How. 62; Sullivan v. Sullivan, 66 N. Y. 37 ; Burha7is v. BurJians, 2 Barb. Ch. 398 ; Boyd v. Dozvie, 65 Barb. 237; Brownell v. Browncll, 19 Wend. 367. Ownership in fee and a constructive possession, such as the law draws to the title, is sufificient to maintain the action. Wainman v. Hampton, 1 10 N. Y. 429. Where title is in heirs, it authorizes partition. Grant v. Keator, 117 N. Y. 369. One of the several co-tenants can maintain the action, although another holds adversely, if the adverse possession has not run a sufificient time to extinguish plaintiff's title. Weston v. Stoddard, 137 N. Y. 119. The seizin of one co-tenant, unless proved to be adverse, is the seizin of all, and either may institute proceedings for partition, although not personally in possession. Hitchcock v. Skinner, Hoff. Ch. 21 ; Beebe v. Griffing, 14 N. Y. 238; Florence v. Hop- kins, 46 N. Y. 182; Blakcley v. Calder, 15 N. Y. 617. The latter case was, as stated in Sullivan v. Sullivan, 66 N. Y. 37, solely between remaindermen. Where the plaintiff has neither actual nor constructive possession, the court is bound to notice the objection in behalf of infant parties. Fleet v. Dorland, 1 1 How. 489. Partition between tenants in common is a matter of right. Smith V. Smith, 10 Paige, 470. Where the intestate was seized and possessed of lands which descended in common, one of them, though not in possession, can maintain proceedings for partition, if the lands are unoccupied. Beebe v. Griffing, 14 N. Y. 235. But a plaintiff cannot have judgment of partition as to parcels in which he has no interest. Beach v. The Mayor, 45 How. 357. It may be had by the several owners of property subject to a lease, the owners being tenants in common, both of the rents and the reversion. Woodworth v. Campbell, 5 Paige, 518. Partition is allowable between heirs having an equitable title. Herbert v. Smith, 6 Lans. 493. A tenant for life or for years may have par- 1 lO PARTITION. Art. 3. When Action may be Brought and by Whom. tition. Ackley v. Dygert, 33 Barb. 189; Van Arsdalc v. Drake, 2 Barb. 600. A tenant by the curtesy, as he has a Hfe estate in the lands of his deceased wife, may maintain partition. Riker v. Darke, 4 Edw. Ch. 468 ; Sears v. Hycr, i Paige, 483 ; Tilton v. Vail, 42 Hun, 638, 53 Hun, 324; contrary, Reed v. Reed, 46 Hun, 212; citing § 1538, affirmed, 107 N. Y. 545, but it is held that all parties are bound by an order confirming a sale made in such an action. An infant co-tenant may maintain partition, except where the statute makes especial provision for his protection and apply for a partition, in the same manner that he might institute any other action to enforce his rights in the same property. Postley v. Cain, 4 Sandf. Ch. 509; Clark v. Clark, 14 Abb. 299, See § 1534. But under the Code, an infant cannot maintain partition without leave of the court, even as co-plaintiff. Strnppman v. Miller, 52 How. 211. A married woman may compel her husband to make partition of land in which they are co-tenants. Moore v. Moore, 47 N. Y. 468. Where suit is brought by the committee of an habitual drunkard or lunatic, the drunkard or lunatic should be joined. Gorham v. Gorhavi, 3 Barb. Ch. 24. An assignee for the benefit of creditors may bring partition; Van Arsdale v. Drake, 2 Barb. 599 ; or by an assignee in bankruptcy ; Rutherford v. Hewey, 59 How. 231 ; or by a devisee of a life estate. Canfield v. Ford, 16 How. 473. An heir of a deceased intestate can maintain parti- tion, although he, in common with other heirs, has signed an agreement not to do so; the agreement is void for lack of con- sideration. Elderkin v. Rowell, 42 How. 330. Partition cannot be maintained by one having a mere future contingent interest in an undivided share ; Striker v. Mott, 2 Paige, 387 ; nor between a tenant in fee and his landlord, though the tenant has acquired a moiety of the rent and reversion. Lansing v. Pine, 4 Paige, 639. Lands set apart for salt works are not the subject of partition be- tween heirs of the person to whom they were set apart by the State authorities. Neweomb v. Newcomb, 12 N. Y. 603. Where five persons, as committee for a larger number, took title to lands, and were authorized, by written agreement^to erect sheds thereon at joint expense of subscribers, held, that the land was so far im- pressed with a trust that partition could not be had between the grantees. Baldwin v. Humphrey, 44 N. Y. 609. PARTITION. I [ r Art. 3. When Action may be Brought and by Whom. It seems that a receiver appointed in supplementary proceed- ings cannot maintain partition. Miller v. Levy, 46 Supr. Ct. 207 ; DuBois V. Cassidy, 75 N. Y, 298; Payne v. Becker, 87 N. Y, 153. Contra, Buelson v. Reeves, 2 Week. Dig. 375. A trustee with power to receive the rents and profits, and sell the lands and invest the proceeds, can maintain partition. Gallic v. Eagle, 65 Barb. 583. Although a tenant in common is trustee for some of the other tenants, he may maintain the action. Cheesman v. Thorn, i Edw. 629. The heirs of a deceased person or, in case they have parted with their title, their grantees, are proper parties for a suit for the partition of the real estate of the deceased. Vandcrwerker v. Vandcrzverker, 7 Barb. 221. Partition was decreed where plain- tiff's interest was as owner in fee of an undivided share of mines and minerals on, and in the premises, with power to go on the land and work such mines, and defendant was owner in fee of the residue of the estate and interest in the premises. Ca^ifield v. Ford, 16 How. 473, affirmed, 28 Barb. 336. One. cestui que trust C3in main- tain partition against a trustee who has purchased the interest of the other cestui que trust. Sterricker v. Dickcnsoji, ^Bsirh. 516. Where administrators advance from their funds moneys to com- plete the purchase of lands made by their intestate and take title in their own names as security, an action for partition to which they, the widow and heirs, are parties, may be maintained. Her- bert V. Smith, 6 Lans. 493. One having a present interest, /rr autrie vie, in an undivided portion of lands, and a contingent remainder in fee in an undivided part, is entitled to partition, and if actual partition cannot be had, to a sale. Brevoort v. Brevoort, 70 N. Y. 136. A party seized in fee may maintain partition, though it is subject to a right of possession in trustees created under a will for the purpose of executing the trust. Chapman v. Cowenhovcn, 7 Hun, 341. Tenants for life may have partition between themselves, and all persons entitled to any beneficial estate may be made parties, and the judgment is conclusive on all of them. /c7/X'/;^j- V. ivr/^^jf/, 73 N. Y. 355. Parties having no vested interest in the real estate cannot maintain partition. Woodruff w Cook, 47 Barb. 304. Where a valid express trust is created, and the legal title vests in the trustee, a partition cannot be decreed. Morse v. Morse, 85 N. Y. 53; Davies v. Davics, 15 Week. Dig. 118, affirmed, 92 N. Y. 633. A cestui que trust cannot maintain I I 2 PARTITION. # Art. 3. When Action may be Brought and by Whom. an action for the partition of land. Harris v. Larkins, 22 Hun, 488, but see 9 Barb. 516, supra. A widow cannot maintain parti- tion by virtue of her dower right. Wood v. Clute, i Sandf. Ch. 199; Coles V. Coles, 15 Johns. 319. But partition is properly ordered where the power of sale in the executor would need the aid of the court to fix the time when it could be had. UnderJiill V. UnderJiill, 4 St. Rep. 858. An action for partition of lands, which were subject to a valid power of sale in the executors of a will, sustained when the executors for more than twenty-five years had omitted to execute the power, and most of the parties inter- ested had conveyed their title in the property, and thus elected to dispense with the power of sale in the will. Purdy v. Wright, 44 Hun, 239, citing several authorities. Where husband and wife are tenants by the entirety — citing Bertles V. Nmian, (^2 N. Y. 152 — a deed executed by the wife conveys no title, and her grantee cannot maintain partition. Zoriitlein v. Brozvu, 100 N. Y. 12 ; same rule, Miller v. Miller, 9 Abb.( N. S.) 144. Where the parties own separate parcels, and are not in possession, a partition cannot be had. Danvers v. Doherty, 14 Abb. 106. It was held that the statute prohibits partition where the provisions of a will prevent the lands of in- fants from being sold, and where a partition would defeat the instrument. Midler v. Striippmann, 55 How. 521. The provi- sion of the statute referred to in that decision was repealed by chapter 245, Laws 1880; by § 2357 the limitation is only applied to sales of infant's real estate by order of the court. Where grantees have contracted to sell again under a valid contract, they are no longer tenants in common so that either can compel a parti- tion. Baldwin v. Hiuiiphrey, 44 N. Y. 609. If the personal property of decedent appears to be insufficient to pay his debts, a decree of sale will not be granted in partition. Matthews v. Matthews, i Edw. Ch. 565, applied in FoJida v. Chapman, 23 Hun, 119; said to be overruled by later cases on another point; Abbott's Cases criticized, page 482. It was held before the pres- ent Code — see Van Sehnyver v. Mulford, 59 N. Y. 426 — that adverse possession barred an action of partition. But see §§ 1537 and 1543. A tenant for life may not maintain partition, because not a joint tenant nor tenant in common with a remainderman, but a decree in such an action is not void. Cromwell v. Hull, 97 N. Y. 209. PARlSirFION. 113 Art. 3. When Action may be Brought and by Whom. Where it appeared that plaintiff and some of the defendants in partition were aliens, who had not declared their intentions to become citizens, held, that this did not prevent the maintenance of the action, but that the State would be a necessary party. Nolan V. Command, 1 1 Civ. Pro. R. 295. Present partition and sale cannot be compelled by the remain- derman during the life of the life tenant without his consent. llugJics V. Hughes, 2 Civ. Pro. R. 139. A conveyance by a trustee to a cestui que trust which does not extinguish the trust, gives the latter no status to maintain parti- tion. Thebaud v. ScJiermerhorn, 10 Abb. N. C. 72. Partition cannot be had where the parties own separate parcels and are not in possession of any portion of the land, either as joint tenants or tenants in common. Boyd v. Dowie, 65 Barb. 237- Nor between husband and wife of land conveyed to them, their heirs and assigns, by a deed not indicating that they are to hold, as joint tenants or tenants in common, or have a several interest, because the survivor takes the whole. Miller v. Miller, 9 Abb. (N. S.) 444. An action of partition cannot be maintained as to a parcel of land as to which there are no undivided interests, and the court may dismiss an action as to such parcel and continue it as to others. Vari Sehaack v. Saunders, 24 Week. Dig. 225. An action may be maintained by one tenant in common of a leasehold estate, for the partition thereof, and where it appears that at the time of trial, the estate for years has terminated, although no sale can be then directed, the action may be continued for an accounting for rents and profits received by defendant who has been in possession. Walther v. Regnault, 56 Hun, 560 ; S, C. 31 St. Rep. 756, 9 N. Y. Supp. 849. The action may be maintained between husband and wife as joint tenants where the deed under which they hold was made subsequent to chapter 472, Laws of 1880, and expressly conveys the land to them as joint tenants. Wursv. Wurz, 27 Abb. N. C. 58. Tenants in common are constructively in possession and when one of several is in actual possession, his possession will, in the absence of any act of ouster on his part, inure to the benefit of all, and any one of them can maintain a suit for partition, Waimnan V. Hampton, 20 Week. Dig. 68. [Special Actions — 8.] I 14 PARTITION. Art. 3. When Action may be Brought and by Whom. Adverse possession, to be effectual as such, must be open and unequivocal and so notoriously hostile as to be productive of ouster of the co-tenants, before they are denied the right of action for partition, and put to that of ejectment. Hulse v. Hiilse, 23 St. Rep. 123; s. c. 17 Civ. Pro. R. 92, 5 N. Y. Supp. 747. An alien heir-at-law holding as tenant in common may main- tain the action. Nolan v. Command, 11 Civ. Pro. R. 295. Testator by his will gave his real estate to his executors in trust to sell and divide the proceeds into equal shares and apply the income to the use of his several children during minority and to pay the principal to them respectively on coming of age. By a codicil he revoked the power of sale, directed the lands to be held upon the same trust as the proceeds of sale under the will and gave the executors power to partition and allot to any child his share on coming of age. Held, that this did not authorize the executors to sell the realty in case an actual partition could not be made, nor could a sale be made in a partition action during the minority of any of the children. O' Donoghuc v. Boies, 92 Hun, 3, 37 N. Y. Supp. 961, 73 St. Rep. 10. In Tilton v. Vail, 53 Hun, 324; S. C. 17 Civ. Pro. R. 194, it was held that a tenant by curtesy was in possession of the property and a tenant in common. That as such he was entitled to maintain the action with the same force and effect as though he owned the fee of the property. This rule was held to be applicable only where the tenancy by curtesy was of a part of the property and not to relate to the case where the tenant by cur- tesy was such of the whole estate and his possession exclusive, distinguishing Reed v. Reed, 46 Hun, 212, afifirmed, 107 N. Y. 545 ; see Riker v. Darke, 4 Edw. Ch. 668 ; Seares v. Hyer^ i Paige, 483. The appeal from the decision in Tilton v. Vail^ 53 Hun, 324, supra^ was dismissed (117 N. Y. 520), upon the ground that the Court of Appeals had no jurisdiction to review an interlocutory judgment. This case was first before the court in 42 Hun, 638, on an appeal from an order refusing to grant a reference to take proof of title, which order was reversed upon the merits, it being held that par- tition could be maintained. That decision was appealed from and affirmed, no N. Y. 681, it thus coming back to a rehearing and the appeal, disposed of in 53 Hun, was then taken. It seems that if a person having the present estate brings an PARTITION. 115 Art. 3. When Action may be Brought and by Whom. action for partition against those having only a vested title in remainder and prosecutes it to judgment, it is within the jurisdic- tion of the court, and the judgment and execution cannot be questioned collaterally but will be deemed conclusive upon the parties. While section 1533 did not contemplate making the life tenant a necessary party to the action, the right to make him a party defendant is given by section 1532. Prior v. Prior, 15 Civ. Pro. 436. The existence of a power of sale should not prevent partition where it is a mere power and entirely discretionary as to time of execution. Duffy v. Duffy, 50 Hun, 266. The action of partition cannot be made to substitute for eject- ment or for an action to establish the title of adverse claimants, and possession actual or constructive is essential to its mainte- nance. Haskell \. Queen, 50 St. Rep. 414, 21 Supp. 357. It was held that the action would not lie where it appeared plaintiff's mother had devised the property in trust and out of the rents and profits had bequeathed a certain sum to the plain- tiff. Donnelly v. Donnelly, 50 St. Rep. 250, 21 Supp. 684. Or where it appeared that a grant had been made by the ances- tor to plaintiff's wife upon an agreement that the conveyance should be accepted as an advancement and extinguishment of any claim by plaintiff as heir. Palmer v. Culbertson, 48 St. Rep. 505, 20 Supp. 391. A joint tenant may maintain partition. Baldwin v. Baldwin, 74 Hun, 415, 57 St. Rep. 207, 23 Civ. Pro. R. 268, 26 Supp. 579. Where a wife holds as joint tenant with her husband and not as tenant by the entirety, the action of partition can be main- tained by a party acquiring her interest by conveyance. Joss v. Fay, 129 N. Y. 17, distinguishing Bertles v.Nunan, 92 N. Y. 152. Section 1532 must be read as part of the article to which it pertains and cannot be construed so literally as to render nuga- tory the plain purpose of the provisions with which it is associ- ated. What is meant by possession is a present right to the pos- session as distinguished from the cases in the next section where under certain circumstances the remainderman may bring the action. Weston v. Stoddard, 50 St. Rep. 169, 137 N. Y. 119. Where the plaintiff's interest in the property is only a contin- gent remainder and not a vested one, he cannot maintain parti- tion. Bauiiigras v. Baunigras, 5 Misc. 8. Il6 PARTITION. Art. 3. When Action may be Brought and by Whom. Where the power of sale in a will does not convert the land into personalty and can be executed by the executors only for the purpose of administering the estate committed to their charge as such, and was a mere collateral one and not appurtenant to any estate granted to or trust reposed in the executors, it was held that it was not a bar to an action in equity to effect the divi- sion of the real estate. Mcllcn v. Banning^ 72 Hun, 176, approved Palmer v. Marshall, 81 Hun, 15. Where husband and wife are tenants by the entirety, an action of partition cannot be maintained. Banzer v. Banzer, 10 Misc. 24. Ordinarily land directed to be sold by executors descends to the heirs subject to be defeated by the execution of the power, and partition cannot be maintained. McGregor v. McGregor, 22 Week. Dig. 305; Daviesv. Davies, 15 Week. Dig. 118. Where a testator devised real estate and authorized his widow to " sell and dispose of said estate at auction and to convey the same with full power to execute and give a sufficient deed in law therefor," the widow being one of the legatees as well as execu- trix, the power to sell did not prevent the bringing of an action to partition such real estate by one of the heirs-at-law, having an interest therein. Duffy v. Duffy, 50 Hun, 266; S. C. 3 N. Y. Supp. 23, 19 St. Rep. 228. The provisions of § 1537 allowing partition by one claiming to be an heir whether in or out of possession, does not relieve a plaintiff from the common law rule requiring him to be actually or constructively in possession. Greene v. Greene, 23 St. Rep. 869; S. C. 7 N. Y. Supp. 30. This section is construed in connection with 1533 '\n Prior w. Hall, 13 Civ. Pro. R. 83. As to when a trustee or cestui que trust may mamtain parti- tion, see note on " Parties in Partition," 28 Abb. N. C. 124. A cestui que trust cannot maintain an action of partition even though the trustees were made parties defendant and allowed the judgment to be taken by default. Harris v. Larkins 22 Hun, 488. A trustee for an infant of an undivided naif of real estate can- not divest the title of the infant by partition. Ulil v. Loughran, 22 St. Rep. 459. affirming 17 St. Rep. 763; s. c. 14 Civ. Pro. R. 344- PARTITION. 117 Art. 3. When Action may be Brought and by Whom. The right of plaintiff to maintain partition was denied in Wood- ward V. James^ 115 N. Y. 246, modifying 44 Hun, 95, which afifirmed 16 Abb. N. C. 246, where the executrix took the whole estate in trust to invest, manage and control it and to pay the taxes, expenses and interest and after reserving to herself annu- ally one-half of the gross income, to pay the balance remaining from the other half to the remainderman, such trusts continuing during her life. Sub. 2. When Remainderman can Maintain the Action. § 1533- § 1533. [Am'd, 1887.] Id.; by remaindermen. Where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for the partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein, but no sale of the premises in such an action shall be made except by and with the consent in writing, to be acknowledged or proved and certified in like manner as a deed, to be recorded by the person or persons owning and holding such particular estate or estates; and if in such an action it shall appear in any stage thereof that partition or sale cannot be made with- out great prejudice to the owners, the complaint must be dismissed. The dis- missal of the complaint, as herein provided, shall not affect the right of any party to bring a new action, after the determination of such particular estate. One of the owners of two undivided thirds of certain real estate may maintain an action for partition, notwithstanding the exist- ence of a life estate in the owner of the other third. Mason v. Mason, Abb. Ann. Dig. 1886, page 278. This section is not intended to change the law, but simply to codify it. Present partition and sale cannot be compelled by a remainderman, while the life tenant is still living, without his consent, nor can a sale be made subject to the life estate. Hughes V. HugJics, 2 Civ. Pro. R. 139. It is held in Sullivan v. Sullivan, 66 N. Y. 37, that although remaindermen and reversion- ers may be made defendants in an action for partition they can- not institute the action, at least as against others not seized of a like estate in common with them, and it is queried whether remaindermen may compel partition among themselves, and the case of Blakclcy v. Caldcr, 15 N. Y. 617, is distinguished and limited, and Howell v. Mills^ 56 N. Y. 226, is distinguished. In Brcvoort v. Brevoort^ 70 N. Y. 136, it was held that the objection to partition, by a remainderman or reversioner, could be Il8 PARTITION. Art. 3. When Action may be Brought and by Whom. taken only by the parties, and all the parties were concluded by the judgment, while Jenkins v. Fahcy, 73 N. Y. 355, holds that tenants for life may make remaindermen parties in partition be- tween themselves. See Chism v. KcitJi, i Hun, 589. The cases of Brownell v. Brozvncll, 19 Wend. 367; Burhans v. Bnrhans, 2 Barb. Ch. 398 ; Fleet v. Dorlanei, 1 1 How. 489, hold remainder- men cannot maintain the action. The cases above, together with Morse v. Morse, 85 N. Y. 57, are cited in Hughes v. Hughes, 63 How. 408, affirmed, 30 Hun, 349, and it is there held that a remainderman cannot compel present partition and sale of the real estate while the life tenant is still living, without his consent ; to entitle a remainderman to the remedy, there must be a present estate in possession, and where the estate in possession is with the tenant for life, it cannot be disturbed by one who is entitled to possession only on the death of the present possessor. An action will not lie by a remainderman under a will for a partition of lands which are subject to a power of sale in executors. Me- Gregor v. McGregor, 22 Week. Dig. 305. Query, whether a sale in partition at suit of remainderman can be sustained where an infant is interested. Prior v. Prior, 41 Hun, 613. Under section 1533, so soon as it appears that an actual partition of the lands in question cannot be made without greater prejudice to the owners, the court has no power except to direct that the complaint be dismissed. It cannot direct that the property be sold. Schcu v. Lehning, 31 Hun, 183. But a complaint is not demurrable which asked for a partition or sale if it does not appear on its face that an actual partition cannot be had. Diehl v. Lambart, 9 Civ. Pro. R. 269. Prior to the amendment to the Code in 1887, an action of parti- tion could not be maintained by a remainderman or reversioner where their interest was subject to that of one holding a particu- lar estate and an actual partition could not be made, and the complaint must be dismissed. A judgment in such a case is not an irregularity or error in fact, but a jurisdictional defect, and the judgment may be vacated notwithstanding more than one year elapsed between the time of entry thereof and the time of making the motion. Prior v. Hall, 13 Civ. Pro. R. 83. Section 1533 did not contemplate that the tenant for life should be a necessar>' party to the action, but the right to make him the party defendant in such a case is given by § 1532 PARTITION. 1 19 Art. 3. When Action may be Brought and by Whom. Prior V. Prior. 49 Hun, 502; S. C. 15 Civ. Pro. R. 436, 18 St, Rep. 566, Where the property consists of one house and lot which is in- capable of actual partition between the claimants, no sale can be ordered without the written consent of the life tenant. Heminje V. Meinen, 20 Supp. 619, citin 1594. 1540, 1588- Sub. I. Who are necessary and proper parties. §§ 1538, 1539, 1594. 2. Supplemental summons in case of death of party. § 1588. 3. Creditors having liens on undivided shares as parties. § 1540. Sub. I. Who are Necessary and Proper Parties. §§ 1538, 1539, 1594- § 1538. [Am'd, 1896.J Who must be parties. Every person having an undivided share, in possession, or otherwise, in the property, as tenant in fee, for life, by the curtesy, or for years; every person en- titled to the reversion, remainder, or inheritance of an undivided share, after the determination of a particular estate therein; every person who, by any con- tingency contained in a devise, or grant, or otherwise, is or may become en- titled to a beneficial interest in an undivided share thereof; every person having an inchoate right of dower in an undivided share in the property; and every person having a right of dower in the property, or any part thereof, which has not been admeasured, must be made a party to an action for a partition. But no person, other than a joint tenant, or a tenant in common of the property, shall be a plaintiff in the action. Whenever an action for the partition of real property shall be brought before the expiration of three years from the time when letters of administration or letters testamentary, as the case may be, shall have been issued upon the estate of the decedent from whom the plaintiff's title is derived, the executors, or administrators, as the case may be, if any, of the estate of said decedent shall be made parties defendant. In case no executor or administrator of such decedent shall have been appointed at the time said action is begun, that fact shall be alleged in the complaint. The executors or adminis- trators, if any, as the case may be, of a deceased person, who, if living, should be a party to such action, shall be made parties defendant therein, and, in case no executor or administrator of such deceased person shall have been appointed, that fact shall be alleged in the complaint. Where the interlocutory judgment directs a sale of the premises sought to be partitioned; or of some part thereof, the premises so sold pursuant to such interlocutory judgment, shall be free from the lien of every debt of such decedent or decedents, except debts which were a lien upon the premises before the death of such decedent or decedents. Where the action is brought before three years have elapsed from the granting of such letters of administration or letters testamentary, as the case may be, upon the estate of the decedent from whom the plaintiff derived his title, the final judg- ment shall direct that the proceeds of the sale remaining after the payment of the costs, referee's fees, expenses of sale, taxes, assessments, water rates, and liens 134 PARTITION. Art. 5. Necessary and Proper Parties in Partition. established before the death of the decedent therein directed to be paid, be forth- with paid into the court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled t-hereto, to await the further order in the premises. Where the action is brought before three years have elapsed from the granting of letters of administration or letters testamentary, as the case may be, upon the estate of a deceased person who, if living, should be a party to the action, the final judgment shall direct that the share of the proceeds of such sale which would have been his, if living, be paid into court by such referee, by depositing the same with such county treasurer, to await the further order in the premises. Upon the certificate of the surrogate of the county of which the de- cedent was, at the time of his death, a resident, showing that three years have elapsed since the issuing of letters testamentary or letters of administration, as the case may be, upon the estate of said decedent, and that no proceeding for the mortgage, lease or sale of the real property of said decedent for the payment of his debts or funeral expenses, or both, is pending, and upon the certificate of the county clerk of the county where the real property sold under the interlocu- tory judgment is located, showing that no notice provided for in section twenty- seven hundred and fifty-one of the code of civil procedure has been filed in his office, the court wherein the final judgment was made, shall, upon the applica- tion of any party to said action, make an order directing the county treasurer to pay to said party from said deposit the amount to which he is entitled under the said final judgment with the accumulation thereon, if any, less the fees of said county treasurer. Any party to such action may, at any time after final judg- ment, upon notice to the executors or administrators of the decedent from whom the party applying derived his share or interest, apply to the court in which said action is pending for leave to withdraw the deposit or share of the deposit, ad- judged in the final judgment to belong to him; and, upon said application, the court may, in its discretion, make an order directing the county treasurer to pay over to said party the deposit, or the share of the deposit, adjudged in the final judgment to belong to him, but said order shall not be made until said party so applying shall have furnished a bond to the people of the State of New York in the penalty of twice the amount of the deposit sought to be withdrawn, with two or more good and sufl[icient sureties, approved by the judge or justice of the court making such order, and filed, with such approval, in the office of the clerk of the county in which such action is pending, to the effect that the said party so withdrawing said deposit will pay any and all claims, not exceeding the amount of said deposit, when thereunto required by order of the court or by order of the surrogate or of the surrogate's court in a proceeding to mortgage, lease or sell the real property of such decedent. § 1539. [Am'd, 1892.] Who may be made parties. The plaintiff may, at his election, make a tenant, by the curtesy, for life, or for years, of the entire property, or whoever may be entitled to a contingent or vested remainder or reversion in the entire property, or a creditor, or other per- son, having a lien or interest, which attaches to the entire property, a defendant in the action. In that case, the final judgment may either award to such a party his or her entire right and interest, or the proceeds thereof, or where the right or interest is contingent direct that the proceeds or share thereof be sub- stituted for the property and invested for whoever may eventually be entitled PARTITION. 135 Art. 5. Necessary and Proper Parties in Partition. thereto, or may reserve and leave unaffected his or her right and interest, or any portion thereof. A person specified in this section, who is not made a party, is not affected by the judgment in the action. § 1594. When the State is interested. The people of the State may be made a party defendant to an action for the partition of real property, in the same manner as a private person. In such a case, the summons must be served upon the attorney-general, who must appear in behalf of the people. Section 1538 was first amended in i8go, by adding provisions to the effect that in an action of partition the executors or admin istrators and creditors of the deceased person, who if living should be a party to the action, must be made defendants and regu- lating the proceedings to be had where there are unpaid debts of the deceased. This amendment disposes of the vexed ques- tion in the courts as to whether or not the action could be maintained in case an answer set up the fact that there were existing debts which were a lien upon the property. It was previous to that amendment the practice in many instances to make the executor and administrator of a deceased person parties, in order that the debts might be paid in the action, and a form of complaint is given entitled " Amended and Supple- mental Complaint setting out void devise," which contains proper allegations in such a case. The provisions of § 1538 as it stood prior to the amendment by Chapter 277, Laws of 1896, did not authorize an order bringing in the administrator and all the general creditors of the estate, as the common ancestor was not a person who if living should be made a party to the action, as in such case there could be no action ; that provision applied only to the case of a deceased owner of an undivided share. Undcrhill v. Underhill, 6 App. Div. 78. A life tenant cannot maintain partition against the owner in fee. Muldozvncy v. Morris & Essex R. R. Co. 42 Hun, 444. All tenants in common must be made parties. BurJians v. Burhans^ 2 Barb. Ch. 398. Remaindermen should be parties and are neces- sary in order to bind their interests by the judgment. A rever- sioner is a necessary party where the action is brought by a person entitled to an undivided share of the reversion, and also where the action is brought by the owner of an undivided share of the premises for life or of any other estate therein and 136 PARTITION. Art. 5. Necessary and Proper Parties in Partition. some of the other parties own the residue. Striker v. Mott^ 2 Paige, 387. Where an undivided portion of the premises has been conveyed to a trustee upon an unauthorized trust the cestui que trust is a necessary party to the action, otherwise where the trustee takes the title under a vaHd trust. Braker v. Deveraux, 8 Paige, 513; Scott V. Stebbins^ 27 Hun, 335. But if the parties are all adults the objection should be raised by answer. Braker v. Deveraux^ 8 Paige, 513. A tenant in common of part of the property is not debarred from bringing partition because he is a trustee as to another part. Cheesernan v. Thorne^ i Edw. 630. As to right of lessee to become purchaser of an undivided interest, see Lansing V. Pine^ 4 Paige, 639. The persons entitled in remainder to the real estate devised in trust with power to convey to them, have a vested interest in the property notwithstanding the Statute of Trusts, § 73, which de- clares the entire legal and equitable title to be in the trustee, and they should be made parties to an action in partition. If not made parties their interests are not affected by a judgment and sale. Moore v. Appleby, 36 Hun, 368, affirmed, 108 N. Y. 237. If the plaintiff does not make all necessary parties defendant he will not be entitled to judgment of partition or sale. Burhans v. Burhans, 2 Barb. Ch. 398. But where the real estate is con- verted into personalty by will of testator and the whole title vests in trustees, the parties entitled to the fund are not necessary de- fendants in an action of partition. Delafield v. Barlow, 107 N. Y. 537. Persons who have parted with their interest in the premises are not necessary parties. Van Derwerker v. Van Derwerkcr^ 7 Barb. 221. The section now provides that every person having an in- choate right of dower in the property or any part thereof must be a party. As to the rule under the Revised Statutes, see Tanner V. Niles, I Barb. 560 ; BradsJiaw v . Callaghafi, 5 Johns. 80, approved, 8 Johns. 558; Coles v. Coles , 15 Johns. 319; Green v. Putnam, i Barb. 500 ; Wood v. Clutc, i Sandf. Ch. 199. The court, before it will order a sale of land in partition cases, requires that all those having an interest in them should be made parties to the action to the end that the purchaser may get a perfect title. Hence the wives of those entitled to a share of the land must be made parties. Knapp v. Hungerford, 7 Hun, 588. PARTITION. 137 Art. 5. Necessary and Proper Parties in Partition. It was held in Rosekrans v. Rosekrans^ 7 Lans. 486, that under the then statute the wives of owners were only necessary parties in case a sale was had. It was also held in that case that the wife of the party bringing suit need not be joined as plaintiff; that she is more properly made a defendant. In Foster v. Foster^ 38 Hun, 365, it is held that the plaintiff may join his wife, having an in- choate right of dower, with him as plaintiff, and that it is not a violation of § 1538, and a demurrer interposed on the ground of misjoinder of parties was overruled. It seems that partition was, under § 452 of the former Code, an action for the recovery of real property, so that the court could order a person not a party, but having an interest in the matter, to be made a party by amendment. Waring v. Waring^ 3 Abb. 246. If rents are due from one of the tenants in common to an- other at the time of the death of the latter, the administrator of the deceased co-tenant is a proper party to the action, as he is entitled to receive such rents. Scott v. Guernsey, 48 N. Y. 106. Where the legatees under a will are not made parties and the personal estate was insufficient to pay them and the legacies are or may be a charge on the real estate, a purchaser will not be compelled to take title. Jordan v. Poillon, jy N. Y. 518. Where an action to partition land was commenced before the death of plaintiff's grantor, and before judgment the grantor died leaving several children who were not made parties defendant, and the action proceeded to judgment and sale, held, the title of the children not made parties was not affected by the sale. Mil- ler V. Wright, Ct. of App. 14 St. Rep. 811. But the presumption is, in the absence of an allegation to the contrary, that the personalty is sufificient, an executor is not a necessary party. Prentice v. Jansen, 79 N. Y. 478. Where cer- tain grandchildren took a contingent limitation upon a fee under a will, held, that they were necessary parties to an action of par- tition between those holding the prior contingent estate in fee under the will. Nellis v. Nellis, 99 N. Y. 505. The person in possession should always be made a party to an action of parti- tion. Kapp V. Kapp, 15 St. Rep. 967. Section 1539 is said to be modeled upon § 36 of the Revised Statutes, relating to actions of partition, with the addition of a clause including a lienor of the entire property, amended so as to permit the plaintiff to join the persons specified as defendants. 138 PARTITION. Art. 5. Necessary and Proper Parties in Partition. and by providing that such a person shall not be affected by the judgment only where not so joined, or where joined his rights are reserved by the judgment. Section 1540 is from chapter 320, Laws of 1830. These sections seem to render obsolete Bogardus V. Parker, 7 How. 305, holding that an incumbrancer of the whole property was a necessary party. It was held in Wotten v. Cape- land, 7 Johns. Ch. 140; Harwoodv. Kirby, i Paige, 469; Sebring V. Mersereau, 9 Cow. 344, that mortgagees or judgment creditors are not necessary parties. They could, however, be made parties. Harivood v. Kirby, i Paige, 470. Incumbrancers may be made parties in order to ascertain their rights in an action for partition. Grinnellv. Maclean, 16 Hun, 133. Though not necessary to make creditors having a lien by judgment, mortgage, decree, or otherwise, parties defendant, yet it is always safe and proper to do so, particularly where a sale is contemplated ; and that, too, whether the lien be a specific lien on the interest of one of the parties, or a general lien on the whole premises. Barb. Ch. Pr. 288 ; Bogardus v. Parker, 7 How. 305. A general lien on the whole premises, paramount to the title of tenants in common, is not cut ofT by partition to which the holder of such a lien is not a party. Mead v. Jenkins^ 29 Hun, 53. A person who has or claims to have a lien upon or interest in the entire property sought to be partitioned, may be made a party. Best V. Zeh, 82 Hun, 232, 63 St. Rep. 549, 31 Supp. 230. A creditor with lien on the whole premises, need not be made a party. But if he is, the amount and validity of his lien may be determined. Townshendv. Toivnshend, i Abb. N. C. 81. A creditor of one deceased, who has no lien by judgment, has no right to be made a party to an action of partition, brought to divide the real estate of deceased between his heirs and devisees. Waring v. Waring, 3 Abb. 246. The future contingent interests of persons not in esse, such as contingent remaindermen or persons to take under an executory devise, who may hereafter come into being, are bound by the judgment, they being considered as virtually represented by the parties to the action in whom the present title is vested. Mead v. Mitchell, 17 N. Y. 210. Where, in an action of partition, all the necessary parties were before the court, but the plaintiff was both a tenant in common PARTITION. 139 Art. 5. Necessary and Proper Parties in Partition. and trustee, but was not either plaintiff or defendant in such capacity, although his interests were stated, there was not a defect of parties. Diehlv. Lanibart, 9 Civ. Pro. R. 267. \\-\ Jor- dan V. Van Epps, 85 N. Y. 427, where it was claimed that a dower right was not affected by the partition, it was said the court had jurisdiction over the subject-matter and the parties in the parti- tion suit ; the plaintiff's right of dower was set forth in the com- plaint, and she could have contested the statement of the same if she chose to do so; she interposed no defence that her dower right was not the subject of adjudication or the judgment errone- ous, and the decree in partition was held binding. In an action for partition, the holder of a mortgage was made a party defend- ant; the lien of his mortgage being questioned, he answered alleging its validity, and asked that the premises be sold subject thereto, or that it be paid out of the proceeds. The mortgage was adjudged not to be a valid lien ; it was held that the mort- gagee was bound by the decision. Barnard v, Onderdonk, 98 N. Y. 158. The rule as established by the Revised Statutes, enlarging the power of the court in partition cases so as to dis- place liens on the property and transferring the same to the fund, has been preserved by the present Code. But general liens on the entire property, or general or specific liens on undivided shares, cannot be enforced by the final judgment unless the par- ties having liens have been made defendants. It seems certain that the Legislature intended that persons claiming to have adverse liens may be made parties defendant in a partition suit, under § 1539, at the election of the plaintiff, and their validity adjudicated therein. Lcincn v. Elter, 43 Hun, 249. In an action for partition of lands brought by a grantee in a trust deed, by the terms of which he was authorized only to sell so much of the property as was necessary for certain purposes and had discretion with regard thereto, and which directed that upon the death of the grantor, he should pay over the residue to the grantor's surviving children, it was held that upon the death of such grantor before judgment, his children were necessary par- ties, and that without them a title could not be perfected, such children having an interest in the fee and grantor's interest then ceasing. Miller v. Wright, 109 N. Y. 194. This case distin- guished Delaficldv. Barlow 107 N. Y. 535, where it was held that under the provisions of a will devising real estate, an infant child I40 PARTITION. Art. 5. Necessary and Proper Parties in Partition. of one of the daughters was not a necessary or proper de- fendant, under this section, for the reason that she could never take the real estate and had no title thereto or interest therein as realty, but that the whole title vested in the executors and trustees. It was said in Tilton v. Vail, 53 Hun, 324, that the prohibition of § 1538 as to any other person than a joint tenant or tenant in common, being entitled to bring the action, was injected into the law by the codifier and did not exist in the Revised Statutes. In Reed v. Reed, 46 Hun, 212, affirmed, 107 N. Y. 545, it was held that where an action for partition was commenced by one who under this section was a proper party to the action although not a joint tenant or tenant in common, the defect was not juris- dictional and the decree directing a sale not void, and the pur- chaser was obliged to take title. But where, on motion of the purchaser, to be relieved of his purchase, it appeared that certain non-resident aliens who were of the same blood and kinship with the deceased and who, if citizens, would have been entitled to a share in the land, were not made parties to the suit, the applica- tion was denied upon the ground .hit the judgment did not suffi- ciently or conclusively as against the heirs not made parties, establish their incapacity to have or acquire an interest. Toole v. Toole, 112 N. Y. 333. The husband of a person who died intestate seized of an undi- vided interest in certain premises prior to the commencement of the action for the partition thereof is a necessary party. Bogert V. Bogert, 23 St. Rep. 595, 6 N. Y. Supp. 299, 25 St. Rep. 373. Every person having an inchoate right of dower in an undivided share of property to be partitioned and every person having a right of dower in any part thereof which has not been admeas- ured, must be made a party. Joiirdan v. Haran, 56 N. Y. Supr. 185. Where a will devises a share of real estate in trust for the benefit of another during life, and upon his death to his child or heirs in an action of partition, those entitled to such share were not made parties and it was held that they were not concluded by the judgment. Moore v. Appleby, 108 N. Y. 237. The fact that one has a claim by virtue of which he may become interested in real estate, does not render him a proper party. Savage v. Allen^ 54 N. Y. 458. PARTITION. 141 Art. 5. Necessary and Proper Parties in Partition. The case of Dargin v. Wells, Supreme Court, at Special Term, is cited Abbott's Dig. vol. 10, at page 365, questioning whether a tenant in common in several parcels of real estate in each of which his co-owners are different persons, can bring them all in as defendants in a single suit, and therein have partition decree as to all the property. In Schwecn v. Grecnbcrg, j6 Hun, 354, 59 St. Rep. 134, 27 Supp. 760 ; Duffy v. Diirant Land Iniproveincnt Co. 78 Hun, 314, 60 St. Rep. 729, 29 Supp. 165; Mellen v. Bamiing, 72 Hun, 176, 55 St. Rep. 319, 25 Supp. 542, the question of necessary parties is discussed, and it is held under the circumstances of those cases that certain parties other than those on the record were necessary. Where in an action of partition brought by one of several ten- ants in common, the complaint alleged that the property was of such a character and so situated as to make actual partition impos- sible except with grave injury to the interests of the owners, and therefore, asked a sale and division of the proceeds, and other parties beside plaintiff's co-tenants were made defendants, the complaint alleging that said parties " claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff and which is a cloud upon the title to said premi- ses," and asking that they be adjudged to have no interest in the property, held, that such other persons were properly made par- ties defendant and the complaint stated a good cause of action against them ; that if the interest claimed by either of said de- fendants was of such a nature as to be totally unaffected by the partition sought, this should be asserted by answer; and that each of said defendants should in the same manner disclose his alleged interest. Tozvnsend v. Bogert, 126 N. Y. 370. The husband of one of the owners of land is not a proper or necessary party to the action of partition. Barnes v. Blake, 59 Hun, 371, T,6 St. Rep. 210, 20 Civ. Pro. R. 17; Mapes v. Brown, Abb. N. C. 94; Trustees v. RotJi., 18 Wk. Dig. 459; Townseiut v. Bogert, 37 St. Rep. 488, holds a complaint not demurrable in such case. A claim to be adjusted and paid out of an interest in real estate conveyed, does not make the claimant a necessary party in an action for partition. Smith v. Siblich, 35 St. Rep. 682, 12 Supp. 905. A defendant claiming dower is a necessary party although there is a question as to the validity of her marriage, as the validity of 142 PARTITION. Art. 5. Necessary and Proper Parties in Partition. her claim may be tried and her interest defined in such an action. Spliess V. Myers, 36 St. Rep. 227, 20 Civ. Pro. R. 157, 13 Supp. 70. Where a will directed the residuary estate to be divided into shares, one share to be held in trust for each of the testator's children, and upon the death of each beneficiary directed his share to be paid to the lawful issue him surviving, and if none survived, made no other disposition ; held that the grandchildren living at testator's death took a vested remainder in the share held in trust for their parents, respectively, subject to open and let in after-born children and to be divested by their death before their parent, and hence they were necessary parties to an action of partition. Campbell v. Stokes, 142 N. Y. 23, 36 N. E. Rep. 811, 58 St. Rep. 451. As to necessity of making persons having interest in premises, parties, see Miller v. Wright, 109 N. Y. 194; Moore v. Appleby, 108 N. Y. 237. Sub. 2. Supplemental Summons in Case of Death of Party. § 1588. § 1588. Proceedings on death of parties. If, upon the death of one of two or more plaintiffs, or one of two or more defendants, in an action for partition, the interest of the decedent in the pro- perty passed to a person, not a party to the action, the latter may be made defendant by the order of the court; and a supplemental summons may be issued, to bring him in accordingly. After judgment for sale and partition, and advertising the sale plaintifT died, and such of his heirs as were not already parties defendant were substituted in his place as plaintiffs. Held, it was not necessary to advertise anew, changing the title of the case. Thzving v. Thwing, 18 How. 458. The heir may revive, in an action for partition and accounting for rents, as to the partition, and the personal representative as to the account. Hoffman v. Tredwell, 6 Paige, 308. If any one of the parties, who is a tenant in common of the premises, dies pending the action, it must be revived against his heirs. A sale after his death, and after the bill has been taken as confessed against him without revivor, is void as against such heirs. The heirs are not required to set aside the decree of sale by motion in the suit, or to appeal, but can impeach the title collaterally. Requa v. Holmes, 16 N. Y. 193; S. C. 26 N. Y. 338. See Gordo7i v. Sterl- ing, 13 How. 405, as to practice under old Code on revivor. PARTITION. 143 Art. 5. Necessary and Proper Parties in Partition. Upon the abatement of proceedings in partition by the death of one of the tenants in common, the rights of the new parties should be ascertained by a reference. Reynolds v. Reynolds 5 Paige, 161. See Wide v, Jenkins, 4 Paige, 481 ; Gardner v. Luke, 12 Wend. 269. Precedent for Affidavit to Revive Action and for leave to file Supplemental Complaint. SUPREME COURT— Ulster County. CATHERINE JOHNSON agst. ELIZA RONK et al. State of New York, \ County of Ulster, \ Rachel A. Kane, being duly sworn, says she resides at Walden, Orange county, N. Y., that she is the daughter of Catherine John- son, deceased, who was plaintiff in this action, and who died on the i2th day of April, 1888; that said Catherine Johnson left a last will and testament duly executed, whereby she devised her real and per- sonal estate to this deponent and Maggie Cameron, Rebecca Tears and Josephine Johnson. Deponent further says, that since the commencement of this action and about the 2d day of November, 1887, Eliza Ronk died, leaving her last will and testament, whereby she devised and bequeathed all her real and personal property to the defendant Benjamin B. Has- brouck; that since the commencement of this action the defendant Elsie Ells died, leaving her surviving her children George Ells, Elizabeth D. Smedes, and Mary H. DuBois. That this action was brought to partition certain real estate, described in the complaint, situated in the county of Ulster, and has proceeded to interlocutory judgment for sale thereof, which judgment was entered in Ulster county clerk's ofifice on the 12th day of January, 1888. That since the commencement of this action one Benjamin B. Hasbrouck has produced a paper purporting to be the last will and testament of Jane Hasbrouck, deceased, the person from whom the parties to this action took title, that said paper was propounded for probate in Ulster Surrogate's Court on notice to all parties interested and objections filed to the probate thereof, and which probate was denied, and Irving H. Loughran, the adminis- trator, etc., of Jane Hasbrouck, heretofore appointed, was directed, by order of the Surrogate's Court of said county, to pay the costs and expenses of the contest thereon, and as deponent is informed and 144 PARTITION. Art. 5. Necessary and Proper Parties in Partition. believes, he has not in hand sufificient funds of the personal estate for that purpose, and the personal estate is insufficient therefor. That as deponent is informed and believes, the existence of such paper was not known to her mother, Catherine Johnson, when this suit was brought. Wherefore plaintiff asks an order of this court that she be sub- stituted in place and stead of Catherine Johnson, deceased, as sole plaintiff, that the heirs-at-law and devisees of the deceased defend- ants be brought in as parties defendants, and that the administrator of Jane Hasbrouck, deceased, be made a party defendant, and that leave be granted to serve an amended complaint herein, adding such parties and setting forth those facts and allegations, the existence of the paper purporting to be a will of Jane Hasbrouck, deceased, to the end that such apparent devise may be alleged and declared void, pursuant to the provisions of the Code of Civil Procedure, and for a further order that the interlocutory judgment and the proceed- ings heretofore had, fixing the rights of the parties including the order cf reference herein, be set aside and vacated, and an amended lis pendens filed herein and the action proceed upon such amended and supplemental complaint. (Add jurat.) RACHEL A. KANE. Precedent for Order Reviving Action and Giving Leave to Serve Supplemental Complaint. At a Special Term of the Supreme Court, held at the Supreme Court Chambers in the city of Kingston, on the 22d day of June, 1888. Present — Hon. Alton B. Parker, Justice. SUPREME COURT — Ulster County. Catherine Johnson agst. Eliza Ronk, Elsie Ells, Charlotte Cranse, Elizabeth Mulford and John, her husband, l\Iary J. Colley and William, her husband, Isaac Hasbrouck and Laura, his wife, Benjamin B. Hasbrouck and Elizabeth, his wife, and Ellen C. Hasbrouck On reading and filing the original summons and complaint in this action, together with the affidavit of Rachel A. Kane, showing the death of the plaintiff, and of the defendants, Elsie Ells and Eliza Ronk; that since the commencement of this action a paper had been produced by the defendant, Benjamin B. Hasbrouck, purport- ing to be the last will and testament of Jane Hasbrouck, deceased, which paper has been refused probate by the Surrogate's Court of Ulster county, and that certain costs, charges and expenses have been incurred in connection therewith, which have been decreed by said Surrogate that they be paid by the administrator, and that the PARTITION. 145 Art. 5. Necessary and Proper Parties in Partition. personal estate of said deceased is insufficient to pay the same, and upon the proposed supplemental summons and complaint, with proof of service of said papers and notice of this application on all the attorneys appearing in the cause and on Irving H. Loughran, as attorney for the deceased plaintiff, and as administrator of, etc., of Jane Hasbrouck, deceased. Now, on motion of Alvah S. Newcomb, attorney for said Rachel A. Kane, A. D. Lent appearing for the defendant Irving H. Lough- ran, as administrator of, etc., of Jane Hasbrouck, deceased, it is ordered that Rachel A. Kane be and is hereby substituted in the place and stead of Catherine Johnson, deceased; that George W. Ells, Charlotte T. Terwilliger, Elizabeth D. Smedes and Mary H. DuBois, be substituted, as parties defendants, in the place and stead of Elsie Ells, deceased ; that Maggie Cameron, Rebecca Tears, Josephine Johnson and Augusta Johnson be also made parties de- fendants; that Irving H. Loughran, as administrator of, etc., of Jane Hasbrouck, deceased, be brought in as a party defendant; that leave be granted to the plaintiff herein and hereby substituted, and she is ordered and directed to serve, upon all the defendants therein named, the amended and supplemental summons and com- plaint herewith presented, and upon which this application is made. It is further ordered and adjudged that such amended and supple- mental complaint and an amended lis pendens be filed ; and it is fur- ther ordered that the proceedings heretofore had, including the order of reference herein and the interlocutory judgment of sale, be vacated and set aside, and that the action proceed in the names of the parties named in the amended and supplemental summons. That the plaintiff, Rachel A. Kane, and the firm of A. D. Lent be each allowed $10 as their costs of this motion. It is further ordered that the costs and disbursements heretofore accrued and incurred in the action, as herein entitled, be taxed and allowed in the action as directed, to be revived with the same force and effect as if said action had continued to judgment as first entitled. ALTON B. PARKER, J. S. C. Sub. 3. Creditors Having Liens on Undivided Shares as Par- ties. § 1540. § 1540. Id.; as to persons having liens. The plaintiff may, at his election, make a creditor, having lien on an un- divided share or interest in the property, a defendant in the action. In that case, he must set forth the nature of the lien, and specify the share or interest to which it attaches. If partition of the property is made, the lien, whether the creditor is or is not made a party, shall thereafter attach only to the share or in- terest assigned to the party upon whose share or interest the lien attached; which must be first charged with its just proportion of the costs and expenses of the action, in preference to the lien. Under § 1538 as amended by Laws of 1890, Chapter 509, it .seems that as the remedy of creditors after lapse of three years is by action against the heirs, the personal representatives of a [Special Actions — 10.] 146 PARTITION. Art. 6. Complaint to State Interests of Parties. deceased heir and the creditors were proper defendants in parti- tion. Sa/ls V. Sails, 28 Abb. N. C. 117, 19 Supp. 246. See § 1538, supra, as amended in 1896, for authority to make certain persons having liens parties. It is regarded as the more convenient and better practice to make all lienors parties to the action. ARTICLE VI. Complaint to State Interests of Parties. § 1542. § 1542. Complaint to state interests of parties. The complaint must describe the property with common certainty, and must specify the rights, shares, and interests therein of all the parties, as far as the same are known to the plaintiff. If a party, or the share, right, or interest of a party, is unknown to the plaintiff; or if a share, right, or interest is uncertain or contingent; or if the ownership of the inheritance depends upon an executory devise; or if a remainder is a contingent remainder, so that the party cannot be named; that fact must also be stated in the complaint. It is said that it is not necessary to aver that the plaintiff is in possession ; that will be presumed. Jenkins v. Van Schaack, 3 Paige, 242. But the contrary is held in Stezvart v. Munroe, 56 How. 193, citing a number of authorities. See on this point authorities under Subd. i of Art. III. But an objection that the complaint does not aver that plaintiff is in possession, is waived, unless taken by demurrer or answer. Howell v. Mills, 7 Lans, 193, affirmed, 56 N. Y. 226. An averment that a party is seized will be construed as an averment that he is the owner of the fee. Lticet v. Beektnan, 2 Caines, 385. The complaint should, in case any of the parties are infants, aver that the lands therein described are the only lands owned in common by the parties as required by the present rule 65. Moffat v. McLaughlin, 13 Hun, 449; Pritchard V. Draft, 32 Hun, 417. The estate of each known owner must be stated, but it may be stated that certain definite portions belong collectively to owners who are unknown. Hyatt v. Pugs- ley, 23 Barb. 285. The complaint should correctly state the shares and interests of the parties, but no mistake or error in that respect, nor any omission to state what plaintiff might be com- pelled to insert by way of amendment, will afTect the decree. It should also allege that there are no other incumbrancers or parties in interest than those mentioned or joined therein. Noble V Cromzvell, 26 Barb. 475, affirmed, 3 Abb. Ct. of App. Dec. 382. The complaint may allege that one of the defendants claims a PARTITION. 147 Art. 6. Complaint to State Interests of Parties. specific lien for moneys paid to extinguish liens on the premises, and asks to have an account of such lien. Bogardiis v. Parker, 7 How. 305. If an account of rents is required it should be asked for in the complaint, or it cannot be allowed on default. Bullwmker v. Ryker, 12 Abb. 311. The complaint may state generally the seizin of the parties without stating how it was acquired. Brad- shaw V. Calleghan, 8 Johns. 558. But if the rights of the parties depend upon a will, it is proper to state the facts. Van Cortland V. Beekman, 6 Paige, 492. No allegations need be made with regard to the interests of contingent remaindermen, who may hereafter come into being, they being virtually represented by the parties to the action in whom the present title is vested. Mead V. Mitchell, 17 N. Y. 210. A complaint praying that a deed be set aside, and the premises conveyed by it partitioned and plaintiff's dower assigned to her, held not demurrable for misjoinder of causes of action. Ham- mond \. Cockle, 2 Hun, 495. Where the complaint in an action brought by a remainderman set out the title, rights and interests of the respective parties, and that they were of full age and demanded a partition or sale of the property, but did not allege that the life tenant had assented to a sale, held, that the complaint stated facts sufficient to constitute a cause of action ; that it cannot be assumed on demurrer, that partition cannot be made without great prejudice, and it did not appear there could not be actual partition. Also where the wife of a tenant in common is made a defendant, and his share alleged to be subject to her inchoate right of dower, the complaint is not demurrable. Diehl v. Lambart, 9 Civ. Pro. R. 267, distinguishing Scheu V. Lehning, 4 Civ. Pro R. 385. An error in the description of the interests of the parties may be amended. Thompson v. Wheeler, 1 5 Wend. 340. As to amending the complaint by bring- ing in parties, scq Jennings w. Jennings, 2 Abb. 16. When one of several tenants in common is in actual possession, his possession will, in the absence of any act of ouster on his part, inure to the benefit of all and therefore it is not necessary to allege that plaintiff was or had ever been in possession. Wain- fnan v. Hampton, 1 10 N. Y. 429. An averment of ownership in fee was all that was required. This action was brought before the Code of Civil Procedure. 148 PARTITION. Art. 6. Complaint to State Interests of Parties. Where the complaint alleged that a deed made by plaintiff's ancestor was intended as a mortgage and demanded that the respec- tive interests of the parties be established and premises .sold, it was held a sufficient statement of rights and interests of the parties under this section and enough to present a question as to such interests for the court to determine. Bell v. Gitterc, 9 N. Y. Sup. 400; S. c. 30 St. Rep. 219, citing Peck v. New York & New Jersey R. R.Co.^S^-^'- 246. The code contemplated that the rights of different defendants may not stand upon the same basis, and the fact that the parties may not be interested in the same question does not affect the validity of the complaint. Ellerson v. Wescott, 88 Hun, 389, citing Townsendv. Bogert, 126 N. Y. 370. A complaint in an action for partition brought by an heir, may properly unite therewith causes of action to set aside a will of the testator and mortgages executed by him, on the ground that they were procured by undue influence where all such instruments were obtained at the same time, in pursuance of the same fraudu- lent scheme. Best v. Zeh, 82 Hun, 232, 63 St. Rep. 549, 31 Supp. 230, 146 N. Y. 363. The complaint in an action of partition on the ground that a devise in the will of the ancestor of the party is void, for want of proper execution, mental incapacity and undue influence, may also allege that the devisee procured the death of the testator and is therefore incompetent to take under the will. Ellersoji v. West- eott, 88 Hun, 389, 34 Supp. 813, 68 St. Rep. 751. Allegations in a complaint that plaintiff and defendants are seized and possessed, held a sufficient allegation of the possession of the plaintiff. Bale7i v. Jacquelin, 67 Hun, 311, 51 St. Rep. 643, 22 Supp. 193. A complaint which avers plaintiff's ownership in common with certain defendants and alleged that other defendants " claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff and which is a cloud upon the title to said premises," and asked that they be adjudged to have no interest in the property, is not demurrable on the ground that it states no cause of action. Tozvnsend v. Bogert, 126 N. Y. 370» 37 St. Rep. 488, reversing 35 St. Rep. 76, 20 Civ. Pro. R. 262, 12 Supp. 461. I PARTITION. 149 Art. 6. Complaint to State Interests of Parties. Precedent for Complaint — Short Form. SUPREME COURT — Ulster County. SAMUEL HOPPENSTEAD agst. LOUISA HOPPENSTEAD, SOLOMON C. HOPPENSTEAD. et al. The complaint of the plaintiff shows to this court: First. That James Hoppenstead, a citizen of the State of New York, died at the town of Gardiner, Ulster county, on or about the 2ist day of January, 1887, intestate, and at the time of his death the said James Hoppenstead was seized in fee simple of the following piece or parcel of land: (Insert description.) Second. That the said James Hoppenstead left the following heirs- at-law and legal representatives, his children, and no others, viz: Samuel Hoppenstead, Solomon C. Hoppenstead, John Hoppen- stead, Margaret C. Holwick and Sarah Smith, who are seized of the said premises as tenants in common. Third. That the plaintiff, Samuel Hoppenstead, and the defend- ants, Solomon C. Hoppenstead, John Hoppenstead, Margaret C. Holwick and Sarah Smith, are seized in fee simple, each of the undi- vided one-fifth part of said premises, the shares of Samuel Hoppen- stead, Solomon Hoppenstead and John Hoppenstead being subject to the inchoate rights of dower of their respective wives, to-wit: Louisa, wife of Samuel Hoppenstead, Minerva, wife of Solomon C. Hoppenstead, and Julia, wife of John Hoppenstead, and the shares of Margaret C. Holwick and Sarah Smith being subject to the mari- tal rights of their respective husbands, Valentine Holwick and Moses Smith. Fourth. That the defendant Valentine Holwick is a tenant of said premises and has no other interest except as hereinbefore stated. Fifth. That the parties to this action own no other real estate, as tenants in common, and all the parties reside in the State of New York, and are of full age. Sixth. That there are no general or specific liens against any or either of the undivided shares in said premises of any or either of the parties to this action, as this plaintiff is informed and believes. Wherefore the plaintiff asks judgment for a partition and division of said premises according to the respective rights of said parties; or, if partition cannot be had without material injury to those inter- ested, then for a sale of said premises and a division of the proceeds between the parties according to their respective rights, after pay- ment of the costs of this action, and that the plaintiff have such other or further relief as maybe just. HECTOR SEARS, Plaintiff's Attorney. IgO PARTITION. Art. 6. Complaint to State Interests of Parties. Precedent for Complaint where there are Infant Defendants and Dower Interest. SUPREME COURT — Ulster County. AM AS A HUMPHREY agst. EGLIN HORNBECK, BIANCA OSTER- HOUDT, The complaint of the above plaintiff respectfully shows to the court that the parties to this action are seized in fee simple, as ten- ants in common, of the following pieces or parcels of land, with the appurtenances, situated in the town of Rochester, Ulster county. New York (here insert description); that one Joseph K. Hornbeck died intestate, seized and possessed of said property about the year 1880, leaving surviving him as his only children and heirs-at-law, Angeline, wife of William S. Harp, Bianca, wife of Elias Osterhoudt, Aurelia Hornbeck, Mary A. Hornbeck and George K. Hornbeck, and an- other infant daughter, who has since died, and his widow, Eglin Hornbeck, the mother of said deceased child, and of the other un- married children above named; that the said Aurelia Hornbeck, Mary A. Hornbeck and George K. Hornbeck are infants and have no general or testamentary guardian, and that the other parties to the action are of full age; that on the 15th day of November, 1883, the said Angeline Harp and William S. Harp, her husband, by a deed bearing date on that day, conveyed all their interest in .said property to Amasa Humphrey, the above plaintiff; that the above plaintiff is the owner of an undivided one-fifth part of said premises subject to the dower interest thereon of the defendant Eglin Horn- beck, and subject to the life estate of said Eglin Hornbeck, in an undivided one-sixth part thereof as the mother of said deceased child, and subject to the inchoate right of dower of the defendant Rebecca Humphrey, and the said Rebecca has such right of dower as afore- said in said one-fifth part; that the defendant Bianca Osterhoudt is the owner of an undivided one-fifth part of said premises, subject to the dower interest therein of the defendant Eglin Hornbeck, and also subject to the life interest of said Eglin Hornbeck in an undi- vided one-sixth thereof as the mother of said deceased child, and subject also to whatever interest her husband, Elias P. Osterhoudt, may have in her said interests as such husband, and said defendant Elias P. Osterhoudt, has such interest, if any, which the law gives him in said share of his wife as her husband; that the defendants Aurelia Hornbeck, Mary A. Hornbeck and George K. Hornbeck are each the owner of an undivided one-fifth part of said premises, sub- ject to the dower interest thereon of the defendant Eglin Hornbeck, and also subject to the life estate of said Eglin Hornbeck in an undi- vided one-sixth part thereof as the mother of said deceased child; PARTITION. 151 Art. 6. Complaint to State Interests of Parties. that the defendant Eglin Hornbeck has a dower interest in the whole property, and a life interest in an undivided one-sixth thereof, sub- ject to such dower interest ; that the premises before described is the only real estate within this State owned by the parties to this action in common, and that said real estate is of the value of about $15,000, as the plaintiff is informed and believes; that all the par- ties to this action are residents of the State of New York ; that, as this plaintiff is informed and believes, there are no general or spe- cific liens or incumbrances on the said premises, or upon or against the undivided interest therein of any of the parties to this action, and that there are no liens upon said premises, or any part thereof. Wherefore the plaintiff demands the judgment of this court, that the part or share of said premises belonging to this plaintiff, and the part or share of each of the other parties to this action of, in or to said premises may be ascertained and determined by and under the direction of this court, and that a partition and division thereof may be made between the said plaintiff and the other parties to this action, according to the respective rights and interests of each therein; and that a commission of partition may be issued out of and under the seal of this court, and proper commissioners may be appointed for the purpose of making a partition of said premises; or in case a partition thereof, or of any part thereof, cannot be made without great prejudice to the owners, that the same, or such part thereof as cannot be divided, may be sold by and under the direction of this court, and that the proceeds of the sale, after paying the costs and charges of this action, may be divided among the owners thereof according to their several rights and interests therein, and to that end that the rignts and interests of the parties interested in the said premises, or in the proceeds of the sale thereof, may be ascertained and determined by the judgment of this court, and for such further or other judgment or relief as may be just and agreeable to equity, D. W. OSTRANDER, Plaintiff's Attorney. 152 PARTITION. Art. 6. Complaint to State Interests of Parties. Amended and Supplemental Complaint, setting out void Devise.* SUPREME COURT — Ulster County. Rachel A. Kane agsL Charlotte Cranse, Elizabeth Mulford and John Mul- ford, her husband, Mary J. Cooley and William, her husband, Isaac Hasbrouck and Laura, his wife, Benjamin B. Hasbrouck and Elizabeth, his wife, Ellen C. Hasbrouck, Elizabeth D. Smedes and John T., her husband, Charlotte T. Terwil- liger and Abram D., her husband, George W. Ells and Sarah, his wife, Mary H. DuBois and John K., her husband, and Maggie Cameron and Herman, her husband, Rebecca Tears and her husband, Josephine Johnson and Augusta John- son, Irving H. Loughran, as Administrator of, etc., of Jane Hasbrouck, Deceased. The plaintiff herein for an amended and supplemental complaint respectfully shows to this court: First. That on or about the i8th day of February, 1887, Jane Hasbrouck, being the owner in fee of the real property hereinafter described, died intestate as to the same, which real property is de- scribed as follows: All that certain piece or parcel of land situated, lying and being in the town of Shawangunk, in the county of Ulster and^'state of New York, and bounded and described as follows: On the west by lands of John G. Borden, on the east by lands of John G. Borden, and on the north by lands of John G. BoMen, and on the south by lands of William Hunt and William Snyder, and being the same premises upon which Benjamin Hasbrouck lived and owned during his lifetime, and owned by Jane Hasbrouck in her lifetime, and which contains one hundred and six acres of land, be the same more or less. Catherine Johnson, a sister who has died since the commencement of this action, which was originally brought by her as plaintiff, and left her last will and testament in and by which she devised and bequeathed her entire real and personal estate to Rachel A. Kane, this plaintiff, Maggie Cameron, Rebecca Tears, Josephine Johnson and Augusta Johnson, daughters of said Catherine Johnson, deceased, and defendants in this action. Second. Eliza Ronk, a sister of Jane Hasbrouck, deceased, who has died since the commencement of this action, leaving her last will *This complaint also makes personal representative of decedent a party. See § 1538. PARTITION. 153 Art. 6. Complaint to State Interests of Parties. and testament in and by which she devised and bequeathed her entire real and personal property to the defendant Benjamin B. Hasbrouck. Third. Elsie Ells, a sister of Jane Hasbrouck, deceased, who iias died since the commencement of this action, leaving her last will and testament in and by which she devised and bequeathed her entire real and personal property to the defendants Elizabeth D. Smedes, Charlotte T. Terwilliger, George W. Ells and Mary H. Du- Bois. The plaintiff further shows that the said Jane Hasbrouck left as heirs the following named persons in whom the title of the aforesaid premises vested. The plaintiff, Rachel A. Kane, who is a niece of said Jane Hasbrouck, deceased; the defendants, Charlotte Cranse, Elizabeth Mulford, Mary J. Cooley, Isaac Hasbrouck, Benjamin R. Hasbrouck, Ellen C. Hasbrouck, Elizabeth D. Smedes, Charlotte T. Terwilliger, George W. Ells, Mary H. DuBois, Maggie Cameron, Rebecca Tears, Josephine Johnson and Augusta Johnson, all nieces and nephews of said Jane Hasbrouck, deceased. That heretofore and on the 14th day of June, 1887, Catherine Johnson, now deceased, and the defendant Irving H. Loughran were duly appointed admin- istrators of, etc., of Jane Hasbrouck, by the Surrogate Court of Ulster county, and the defendant Loughran is the sole surviving administrator of said deceased. Fourth. The plaintiff further shows to the court that the defend- ant Benjamin B. Hasbrouck, since the commencement of this action, produced an instrument in writing purporting to be the last will and testament of said Jane Hasbrouck, deceased, in words and figures following: I, Jane Hasbrouck, of the town of Shawangunk, Ulster county and State of New York, mindful of the uncertainty of human life, do make, publish and declare this to be my last will and testament in the manner following: After my just debts are paid and satisfied, I give, devise and be- queath my real estate and personal property as follows, viz: 1. I give and bequeath to my friend John D. DuBois the sum of $300, to be paid to him in one year after my death. 2. I give, devise and bequeath to my nephew Benjamin B. Has- brouck all my real estate lying and being in the town of Shawan-' gunk, in the county of Ulster, New York, and containing about one hundred acres of land to him and his heirs forever. 3. All the rest and residue and remainder of all my personal estate I give, devise and bequeath to my nephew Benjamin B. Hasbrouck, his heirs and assigns forever. 4. 1 hereby appoint and nominate my nephew Benjamin B. Has- brouck sole executor of this my last will and testament, hereby revoking any former wills by me made, and I hereby authorize and empower my said executors to compromise and settle any claims or demands which may be against or in favor of my estate. In witness whereof I have hereunto set my hand and seal this 22d day of March in the year 1881. JANE HASBROUCK. [L. S.] 154 PARTITION. Art. 6. Complaint to State Interests of Parties. The foregoing instrument was on this 22d day of March, in the year 1881, subscribed by Jane Hasbrouck, the testatrix above named, in the presence of each of us, and at the same time she de- clared to each of us that the said instrument was her last will and testament, and she requested each of us to sign our names thereto as subscribing witnesses, which we did in her presence and in the presence of each other. (Signatures.) And propounded the same for probate in Surrogate's Court of the county of Ulster, on due notice to the parties interested therein, that objections thereto were filed on behalf of the heirs-at-law, and hear- ing thereon had from time to time and such proceedings had, that an order has been duly entered in said court denying the application for probate of such alleged will and fixing the costs, charges, counsel fees and expenses thereof, and directing the same to be paid to the administrator of said Jane Hasbrouck, the defendant Irving H. Loughrau; that as this plaintiff is informed and believes, the per- sonal estate is entirely inadequate and insufficient to pay the said costs, charges and expenses which have been incurred for and on behalf of the heirs-at-law of the said Jane Hasbrouck, the parties to this action, and for the purpose of proving and properly described in the complaint. That the said paper so purporting to be the last will and testa- ment of Jane Hasbrouck, deceased, is not in truth and in fact the last will and testament of said Jane Hasbrouck^^ deceased, and that the same was never subscribed or executed by her, and is in nowise her act or deed, and conveys no right, title or interest of, in and to her property, but that the pretended signature thereto is not her act or deed, nor done under or by her direction, and the same was never acknowledged or in any wise attested by her, and said paper is null, void and of no effect. Sixth. The plaintiff further shows that the defendant, Charlotte Cranse, Elizabeth Mulford, Mary J. Cooley, Isaac Hasbrouck, Benja- m.in B. Hasbrouck, Ellen C. Hasbrouck, Elizabeth D. Smedes, Char- lotte T. Terwilliger, George W. Ells, Mary H. DuBois, Maggie Cameron, Rebecca Tears, Josephine Johnson and Augusta Johnson and this plaintiff are seized in fee simple and entitled to the above described premises as tenants in common, and that their interests and rights therein are as follows: 1. That the said defendants Charlotte Cranse, Elizabeth Mulford, Mary J. Cooley and Isaac Hasbrouck, are each seized in fee and entitled to the one undivided one-twentieth part thereof, as children and next of kin of Jacob Hasbrouck, who was a brother of Jane Hasbrouck, deceased. 2. That the said defendant, Benjamin B. Hasbrouck, is seized in fee and entitled to the one undivided three-tenths part thereof, as a son and next of kin of Henry H. Hasbrouck, deceased, who was a brother of Jane Hasbrouck, deceased, and taking the interest which is one-fifth under the will of Eliza Ronk, deceased, a sister of Jane Hasbrouck, deceased. Si 3. That the said Ellen C. Hasbrouck is seized and entitled to the PARTITION. 155 Art. 6. Complaint to State Interests of Parties. one undivided one-tenth part thereof, as a daughter and next of kin of Henry H. Hasbrouck, deceased, a brother of Jane Hasbrouck, deceased. 4. That the said defendants, Ehzabeth D. Smedes, Charlotte T. Terwilliger, George W. Ells, and Mary H. DuBois, are each seized in fee and entitled to the one undivided one-twentieth part thereof. 5. That the said plaintiff, and the defendants Maggie Cameron, Rebecca Tears, Josephine Johnson and Augusta Johnson, are each seized in fee and entitled to the one undivided one-twenty-fifth part thereof, as children and next of kin of Catherine Johnson, and by the devise in the last will and testament of said Catherine Johnson, deceased, who was a sister of Jane Hasbrouck, deceased. Seventh. The said plaintiff further shows that she and all of the defendants in this action are of full age. That the defendant Laura Hasbrouck is the wife of Isaac Hasbrouck; that Elizabeth Has- brouck is the wife of Benjamin B. Hasbrouck; that Sarah Ells is the wife of George W. Ells, and are each entitled to inchoate right of dower in the interests of the said defendants Isaac Hasbrouck, Benjamin C. Hasbrouck and George W. Ells, their husbands. Eighth. That the defendant John Mulford is the husband of Elizabeth Mulford; that William Cooley is the husband of Mary J. Cooley; that John T. Smedes is the husband of Elizabeth D. Smedes; that Abram D. Terwilliger is the husband of Charlotte T. Terwilliger; that John K. DuBois is the husband of Mary H. Du- Bois; that Herman Cameron is the husband of Maggie Cameron; that Christopher Tears is the husband of Rebecca Tears. Ninth. The plaintiff further shows that the personal property belonging to said Jane Hasbrouck, deceased, at the time of her death, will not be sufficient to pay and discharge her debts in full, and that, as this plaintiff is informed and believes, the debts remain- ing unpaid after applying thereon the personal property of deceased, are a charge and lien upon the real estate hereinbefore described; that the rights and interests of the parties therein, as hereinbefore set forth, are subject to the payment of said debts; that the per- sonal estate in the hands of the administrator is inadequate to the proper and necessary expense of administration and accounting. Wherefore plaintiff asks judgment: First. That the pretended devise to Benjamin B. Hasbrouck, con- tained in the paper purporting to be the last will and testament of Jane Hasbrouck, deceased, be declared null and void, and the instru- ment adjudged not to be the act or deed of said Jane Hasbrouck, and m no wise to affect the disposition of her real property. Second. That the defendant Irving H. Loughran, be adjudged to be paid out of the proceeds of the sale of premises herein, the costs, charges, counsels' fees and expenses adjudged and decreed by the Surrogate Court of Ulster county to be paid by him to the respec- tive parties upon the contest, on the presentation for probate of the said alleged will of Jane Hasbrouck, deceased, for distribution by him to the parties entitled thereto, under and by virtue of such decree. Third. That a partition and division be made of said premises 156 PARTITION. Art. 6. Complaint to State Interests of Parties. according to the respective rights of said parties, or if partition can- not be had without material injury to those rights, then for a sale of said premises and a division of the proceeds between the parties according to their respective rights. Fourth. That this court ascertain and determine the amount of the debts of the said Jane Hasbrouck, deceased, which are a charge against her real estate and personal property of deceased applicable thereto, and that the administrator aforesaid be decreed and adjudged to file an account of his proceedings as such in this court, and to apply the personal estate pro rata to the payment of such debts, after payment of the expenses of administration; and that upon making such payment he be discharged from further liability as such administrator, and that the balance of such debts, which may be chargeable against the real estate of such deceased, be paid by the referee out of the proceeds thereof, next after payment of costs and expenses of this action. ALVAH S. NEWCOMB, Attorney for Plaintiff. Precedent for Complaint — Void Devise — Dower Interest — Absent, Unknown and Infant Defendants. Supreme Court of the State of New York — County of New York. Michael Bowen, Plaintiff, agst. "143 N. Y. 349- Michael Sweeney, Catherine Gallagher and Francis Gallagher, her husband; Joseph Sweeney and Mary Sweeney, his wife; Patrick Sweeney and Ann Sweeney, his wife; Mary O'Donnell, widow; Barney Sweeney and Helen Sweeney, his wife (the plaintiff being ignorant of the names of the said wives, they are designated by fictitious names); the said Michael, Catherine, Joseph, Patrick, Mary and Barney, being children of Ann Sweeney, deceased, sister of the testator John Bowen, deceased; Eliza Sweeney, Robert Sweeney and Eleanor Sweeney, the widow, children and heirs-at-law of John Sweeney, deceased, a son of said Ann Sweeney, deceased (the plaintiff being ignorant of the names of the said widow, chil- dren and heirs-at-law, they are designated by fictitious names), et al, Defendants. The plaintiff above named by this, his complaint, respectfully states upon information and belief as follows: First. That John Bowen, late of the city, county and State of New York, a brother of the plaintiff Michael Bowen, was at the PARTITION. 157 Art. 6. Complaint to State Interests of Parties. time of making his last will and testament as hereinafter mentioned and also at the time of his death, seized in fee simple absolute and in possession of all those certain lots, pieces or parcels of ground situate, lying and being in the Seventeenth ward of the city of New York and known as lots numbered three hundred and forty-four (344) and three hundred and forty-five (345) on " map of lands in the city of New York lying between Tenth and Twentieth streets and between Second avenue and East river, devised by Peter Girard Stuyvesant, deceased, to Julia Stuyvesant and others, Novem- ber II, 1849," together bounded and described as follows: (Insert description.) and that being so seized and possessed of the said property, the said John Bowen died on or about the 14th day of March, 1863. Second. That the said John Bowen in his lifetime to-wit, on or about the twelfth day of June, 1862, duly made and published his last will and testament in manner and form as required by law to pass real and personal property, and which said will was and is in the words and figures as follows, namely: (Insert will.) Third. That the said will of the said John Bowen was duly proved before the surrogate of the county of New York, to whom jurisdic- tion in that behalf belonged, as a will of real and personal property, and the said surrogate duly admitted the said will to probate and duly issued letters testamentary thereon to the executors therein named, who "duly qualified as such, namely, to the defendant John A. McLaughlin on the 9th day of April, 1863, on which day the said will and decree admitting the same to probate was duly recorded in the office of the said surrogate and to the plaintiff on the 26th day of February, 1886. Fourth. That the said testator John Bowen, left him surviving as his only children and descendants, his daughter Mary T. Bowen, and two sons Francis J. Bowen and Thomas F. Bowen. Fifth. That after the death of the said testator, John Bowen, and on the first day of November, 1863, his said son, Francis J. Bowen, who was named in the said will of the said John Bowen, died in the city and county of New York, where he then resided, unmarried and without issue. Sixth. That the said Francis J. Bowen, in his lifetime, to-wit: on or about the 26th day of October, 1863, duly made and published his last will and testament in manner and form as required by law, to pass real and personal property, in and by which will, after bequeath- ing a legacy of one hundred and twenty-five dollars and his house- hold furniture, he gave, devised and bequeathed to his uncle, the plaintiff, Michael Bowen, all the rest, residue and remainder of his property, real and personal, of every name, kind and description; and that the said will was and is in the words and figures as follows, namely : (Insert will.) Seventh. That the said will of the said Francis J. Bowen was duly proved before the surrogate of the county of New York, to whom jurisdiction in that behalf belonged, and afterwards on or about the 158 PARTITION. Art. 6. Complaint to State Interests of Parties. 15th day of August, 1864, the said will was duly admitted to probate by the said surrogate, and was thereupon with the decree admitting the same to probate, duly recorded in the office of the said surrogate. Eighth. That the said Thomas F. Bowen, the other son of the said testator John Bowen, deceased, died in the city of New York; where he then resided, in or about the month of April, 1868, intestate and without issue, but leaving a widow who has since deceased. Ninth. That the said Mary T. Bowen, the daughter of the said testator, John Bowen, deceased, intermarried with one James Hatten and she survived him, and after his death and on or about the 27th day of August, 1885, the said Mary T. Bowen died intestate, unmar- ried and without issue. That the said Mary Teresa Hatten, above mentioned as Mary T. Bowen, on or about the 17th day of April, 1880, signed a certain paper writing which purported to be her last will, and testament in and by which she purported to will, devise and bequeath all her property and estate of every kind and descrip- tion, both real and personal, of which she might die seized or pos- sessed, to the defendants Michael Sweeney and Catherine Gallagher, to have and to hold to them and to be divided equally between them, share and share alike, their heirs forever, and in and by which said paper writing she purported to nominate, constitute and appoint the defendant Michael Sweeney to be the executor of her last will and testament. That the apparent devise made, or claimed to be made by the said Mary Teresa Hatten, in and by said paper writing which purports to be her last will and testament, is void. That the said devise is void in as much as the said paper writing was not exe- cuted by the said Mary Teresa Hatten in the manner provided by law for the due execiition of a last will and testament, in that the said Mary Teresa Hatten could not read writing and did not read the said paper writing before she signed the same or before the same was signed by John R. Hobble and Charles H. Reed, whose names are subscribed thereto as witnesses, and because the same was not read to her or in her hearing before the same was signed or because the said Mary Teresa Hatten did not know when she signed the said paper writing that the same was her will or what the contents thereof were, and because her signature thereto was obtained from her by undue influence, exercised upon her by the defendants Michael Sweeney, Catherine Gallagher and Francis Gallagher, some or one of them. That the said paper writing was obtained from the said Mary Teresa Hatten by a conspiracy entered into by the defendants Michael Sweeney and Catherine Gallagher, and by them and some other person or persons to the plaintiff unknown, for the purpose of fraudulently procuring a will in favor of the said Michael Sweeney and Catherine Gallagher, and that they did in pursuance of the said conspiracy procure the said paper writing to be signed by the said Mary Teresa Hatten and that the said apparent devise in said paper writing made is therefore void. That the said apparent devise is void because the said Mary Teresa Hatten at the time she signed the said paper writing purporting to be her last will and testament, did not have testamentary capacity but was without testamentary capacity. PARTITION. 159 Art. 6. Complaint to State Interests of Parties. Tenth. That at the time of the death of the said testator, John Bowen, on the 14th day of March, 1863, as aforesaid, his only- brothers and sisters then Uving and the only heirs of such of his brothers and sisters as were then dead, were the following named persons, that is to say: The plaintiff, Michael Bowen, of the city of New York, a brother of the said testator, John Bowen, deceased; Patrick Bowen of Ballinamore, county of Leitrim, Ireland, a brother of the said testator, John Bowen, deceased; Ann Sweeney of said Ballinamore, a sister of the said testator, John Bowen, deceased; Bridget Ford, of said Ballinamore, a sister of the testator, John Bowen, deceased; Bridget Bowen, of said Ballinamore, a daughter of Thomas Bowen, deceased, who was a brother of the testator, John Bowen, deceased; Bridget McNulty, of said Ballinamore; Mary Ann Cane and Catherine Ward, now of New York city, children of Catherine Reynolds, deceased, who was a sister of the said testa- tor, John Bowen, deceased. Eleventh. That the said Mary T. Hatten, the last surviving child of the said testator, John Bowen, deceased, at the time of her death was a citizen of the United States and resided in the State of New York, and left her surviving no lineal descendants nor any brother or sister- or child or children or issue of a deceased brother or sister, but did leave her surviving the following named persons, her only heirs-at-law, namely: the plaintiff, Michael Bowen of the city of New York, a brother of the said testator, John Bowen, deceased; the defendants Michael Sweeney, Joseph Sweeney, Patrick Sweeney, Barney Sweeney, Catherine Gallagher and Mary O'Donnell, all chil- dren of said Ann Sweeney of Ballinamore, county of Leitrim, Ireland, who was a sister of the said testator, John Bowen, deceased; the defendants Robert Sweeney and Eleanor Sweeney, children and heirs-at-law of John Sweeney, deceased, who was a son of said Ann Sweeney. Twelfth. That the said testator, John Bowen's said sisters Ann Sweeney and Bridget Ford, and his said brother, Patrick Bowen, all of whom are now deceased, never were residents or citizens of the United States of America, or of the State of New York, and they were all at the time of the death of the said testator, John Bowen, deceased, residents of Ireland, and subjects of the Queen of Great Britain and Ireland, and aliens of the United States of America, and of the State of New York, and they so continued respectively till their deaths respectively; and the said John Bowen's said nieces, the defendants Bridget Bowen of said Ballinamore, a daughter of the said Thomas Bowen, deceased, and Bridget McNulty of said Balli- namore, a daughter of said Catherine Reynolds, deceased, have always resided and now reside in Ireland, and are aliens and sub- jects of the Queen of Great Britain and Ireland, and never were citizens or residents of the United States or of the State of New York, and his nieces the said Mary Ann Cane and Catherine Ward, also daughters of said Catherine Reynolds, deceased, never v.ere residents or citizens of the United States or of the State of New York until after the death of the said testator, John Bowen, deceased. l6o PARTITION. Art. 6. Complaint to State Interests of Parties. Thirteenth. That at the time of the death of the testator, John Bowen, none of the defendants (not including, however, John A. McLaughlin, executor, as aforesaid) was a citizen of the United States of America nor was either or any of the defendants then capable in law of taking or holding real property in the State of New York by descent, purchase, devise or otherwise. Fourteenth. That under and by virtue of the provisions of the said will of the said testator, John Bowen, the plaintiff and the defendants who are hereinafter stated to be so seized, are seized and possessed of the said lots and pieces of land hereinbefore described, as tenants in common, and the rights and interests of the plaintiff and of the said defendants therein are as follows, namely: The plaintiff is seized and entitled in fee simple absolute to 22-27 undivided parts thereof. The defendants, Michael Sweeney, Catherine Gallagher and Joseph Sweeney, Patrick Sweeney, Barney Sweeney and Mary O'Donnell, are each of them seized of and entitled in fee simple absolute to 1-297 undivided parts thereof, the share of the said defendant, Catherine Gallagher being subject to the tenancy by the curtesy initiate therein of her husband, the defendant Francis Gal- lagher, and he has said interest therein, and the said share of the said defendant Joseph Sweeney being subject to the inchoate right of dower therein of his wife, the defendant Mary Sweeney, and she has said interest therein, and the said share of the said defendant Patrick Sweeney being subject to the inchoate right of dower therein of his wife the defendant, Ann Sweeney, and she has said interest therein, and the said share of the said defendant, Barney Sweeney, being subject to the inchoate right of dower therein of his wife, the defendant Helen Sweeney, and she has said interest therein. The defendant, Robert Sweeney, and Eleanor Sweeney, are each of them seized of and entitled in fee simple absolute to 1-594 undivided parts thereof, the share of each of the said defend- ants being subject to the dower therein of her mother, the defend- ant, Eliza Sweeney, who has such dower therein. The defendants, George O'Donnell, Edward O'Donnell, Harriet O'Donnell, Patrick O'Donnell, and Ellen O'Donnell, are each of them seized of and entitled in fee simple absolute to 1-1485 undivided parts thereof. Thomas Sweeney and Francis Sweeney are each of them seized of land entitled in fee simple absolute to (-297 undi- vided parts thereof, the said share of the said defendants Thomas Sweeney, being subject to the inchoate right of dower therein of his wife, the defendant, Mary Sweeney, and she has said interest therein, and the said share of the said defendant, Francis Sweeney, being subject to the inchoate right of dower therein of his wife, the said defendant, Gertrude Sweeney, and she has said interst therein. The defendant, Teresa McNulty, is seized of and entitled in fee simple absolute to 1-297 undivided parts thereof, the said share of the said defendant, Teresa McNulty, being subject to the tenancy by the curtesy therein of her husband, the defendant, Edward McNulty, and he has said interest therein. The defendant, Bridget PARTITION. I6l Art. 6. Complaint to State Interests of Parties. Bowen, is seized of and entitled in fee simple absolute to 1-27 undi- vided parts thereof. The defendants, Patrick Bowen, Francis Bowen, Fannie Mc- Queeny, Thomas Bowen, Michael Bowen and John Moran, are each of them seized of and entitled in fee simple absolute of 1-162 undi- vided parts thereof, the said share of the said defendant, Patrick Bowen, being subject to the inchoate right of dower therein to his wife, the defendant, Helen Bowen, and she has said interest therein, the said share of the said defendant, Francis Bowen, being subject to the inchoate right of dower therein of his wife, the defendant, Ida Bowen, and has said interest therein, and the said share of the said defendant, Fannie McQueeny, being subject to the tenancy by the curtesy initiate therein of her husband, the defendant George McQueeny, and he has said interest therein, the said share of the said defendant, Thomas Bowen, being subject to the inchoate right of dower therein of his said wife, the defend- ant, Bridget Bowen, and she has said interest therein; the said share of the said defendant Michael Bowen being subject to the in- choate right of dower therein of his wife, the defendant Julia Bowen, and she has said interest therein, and the said share of the said de- fendant John Moran, being subject to the inchoate right of dower of his wife, the defendant Lucy Moran, and she has said interest therein. The defendants Patrick Ford, Francis Ford, Michael Ford, Thomas Ford and John Ford, are each of them seized of and entitled in fee simple absolute to 1-135 undivided parts thereof, the share of the said defendant Patrick Ford being subject to the inchoate right of dower therein of his wife, the defendant Mary Ford, and she has said interest therein. (Insert like provisions.) The defendants Bridget McNulty, Mary Ann Cane and Catherine Ward, are seized and entitled in fee simple absolute to 1-81 undi- vided parts thereof, the said share of the said defendant, Bridget McNulty, being subject to the tenancy by the curtesy initiate therein of her husband, the defendant, David McNulty, and he has said interest therein; the said share of the said defendant, Mary Ann Cane, being subject to the tenancy by the curtesy initiate therein of her husband, the defendant, John Cane, and he has said interest therein, and the said share of the said defendant, Catherine Ward, being subject to the tenancy by the curtesy initiate therein of her husband, the defendant, Henry Ward, and he has said interest therein. Fifteenth. That neither the said testator, John Bowen, nor the said Mary T. Hatten, left any other real estate in the State of New York other than hereinabove mentioned and described. Sixteenth. That all the defendants to this action claim to own or to have some interest in the said real property above described under and by virtue of the said will or otherwise. Wherefore the plaintiff demands judgment in this action for a partition and division of said premises and real property hereinbe- fore described, according to the respective rights of the parties in- terested therein, and if a partition cannot be made without material [Special Actions — 11.] l62 PARTITION. Art. Matters of Practice. injury to those rights, then for a sale of said premises and real prop- erty and a division of the proceeds among the parties according to their rights, to be settled and adjudged by this court, afterpayment of the costs and expenses of this action; and the plaintiff may have such other or further order, relief or judgment as to the court may seem proper and agreeable to equity. FLAMEN B. CANDLER, Plaintiff's Attorney. ARTICLE VII. Matters of Practice. 1541. Sub. I. Notice, object of action and order of publication. 2. Defences, how pleaded and effect. 3. Miscellaneous matters of procedure. 4. Appeals. Sub. I. Notice, Object of Action and Order of Publication. § 1541- § 1541. Provision where a party is unknown Where a defendant having a share or interest in the property is unknown, or where his name or part of his name is unknown, and the summons is served upon him by publication, or without the State, pursuant to an order for that purpose, as prescribed in article second of title first of chapter fifth of this act, the notice subjoined to the copy of the summons as published, or served there- with, must, in addition to the matters required in that article, state briefly the object of the action, and contain a brief description of the property. This section takes the place of the provisions of the Revised Statutes and renders obsolete the decision in Sandford v. WJiite, 54 N. Y. 359. No steps can be taken against unknown owners, till notice required by statute has been complied with. Denning v. Corzvin^ II Wend. 647. An order for publication is satisfied by the publication of an order substantially correct, and the court may allow the order to be amended after judgment. Van Wyck v. Hardy, 20 How. 222. PARTITION. 163 Art. 7. Matters of Practice. Precedent for Affidavit for Order of Publication on Absentees. SUPREME COURT. Cornelius H. DuBois agst. Sarah DuBois, Mary G. Merritt and Henry A. Mer- ritt, her husband; Robert W. DuBois and Sarah DuBois, his wife; Louis B. DuBois and Elizabeth DuBois, his wife; Magdalena B. Burhans and Forman Burhans, her husband; Mary J. DeGraw and Edwin S. DeGraw, her husband; Abraham Wood, William Wood, Mary Wood, Malinda DuBois and Abraham Wood. State of New York, | County of Kings, City of Brooklyn, f Cornelius H. DuBois, the above-named plaintiff, being duly sworn, says that the action is brought for a partition of real estate situated in the town of Hurley, in the county of Ulster, this State, in which county of Ulster the place of trial is laid, of which real estate the plaintiff and the defendants Mary G. Merritt, Robert W. DuBois, Louis B. DuBois, Magdalena B. Burhans, Mary J. DeGraw, Abra- ham Wood, Jr., William and Mary Wood, are seized, in fee simple, as tenants in common. That the defendants, Louis J. DeGraw, Magdalena B. Burhans and Mary J. DeGraw, are tenants in com- mon and owners of undivided portions of said premises. That said last mentioned defendants are not residents of the State of New York; but reside, the said Louis B. DuBois at 59 Tears avenue, Jer- sey City Heights, Jersey City, the said Magdelena B. Burhans, at 4512 Brown street, West Philadelphia, Pa., and the said Mary J. DeGraw at No. 1216 Moseley street, Philadelphia, Pa., and they are not to be found within the State, to the knowledge, information and belief of deponent. That the following-named defendants are also non-residents of this State: Elizabeth A. DuBois, who resided with her husband, Louis B. DuBois, at the place above named as his residence ; Thomas Burhans, who resides with his wife, Magdalena B. Burhans, at the place above named as her residence, and Edwin S. DeGraw, who resides with his wife, Mary J. DeGraw, at the place above named as her resi- dence. That the summons and complaint herein were filed in the Ulster county clerk's office, July 22d, 1896, and that the same are hereto annexed. That the plaintiff, the deponent, resides in the city of Brooklyn, in the county of Kings, and the State of New York. That the statements contained in the verified complaint herein are true to the knowledge of deponent. 164 PARTITION. J\rt. 7. Matters of Practice. That the means and sources of deponent's knowledge of the non- residence of the defendants above named, and of their residences at the places above stated are as follows, to-wit: That the defendant Louis B. DuBois is a nephew of deponent's, and from time to time has called at deponent's place of business. No. 24 West street, New- York city, and has told deponent that he resided at the place above named with his wife, the defendant, Elizabeth A. DuBois. That the defendants Magdalena B. Burhans and Mary J. Burhans are nieces of deponent, and deponent from time to time, hears of them and from them through members of deponent's family, and deponent, before making this affidavit, made inquiries of the mem- bers of his family, who write letters to and receive letters from the said Magdalena B. Burhans and the said Mary J. DeGraw, and was told that they resided with their husbands; the said Magdalena B. Burhans with her husband, the defendant, Forman Burhans, and the said Mary J. DeGraw with her husband, the defendant, Edwin S. DeGraw, at the places respectively above set forth as their respec- tive places of residence, which information deponent verily believes to be true, and deponent will not be able, with due diligence, to make personal service of the summons upon any of the above-named resident defendants within this State except the defendant Louis B. DuBois, for the reason that the said defendants reside out of this State, as above set forth, and for the further reason that none of the said defendants, except the defendant Louis B. DuBois, intend, as deponent learns from members of his family who correspond with them, visiting or returning to the State of New York. That the said defendants Louis B. DuBois and Magdalena B. Bur- hans have property within this State, to-wit: each of them has an undivided one-fifteenth interest in the property described in the verified complaint, which is hereto annexed, subject to the dower interest of the defendant Sarah DuBois, the widow of Edmund A. DuBois, and subject also to the inchoate right of dower of the de- fendant Elizabeth A. DuBois, in the interest of the defendant, Louis B. DuBois, and subject also to the general lien of the judgment now held by the defendant Abraham Wood, as alleged in the complaint. That the said defendant, Mary J. DuBois, has property within this State, to-wit: an undivided one-third interest in the property described in the verified complaint herein. (Jurat, usual form.) CORNELIUS H. DUBOIS. I i PARTITION. 165 Art. 7. Matters of Practice. Precedent for Order of Publication on Absentees. SUPREME COURT. Cornelius H. DuBois, agst. Sarah DuBois, Mary G. Merritt and Henry A. Mer- ritt, her husband; Robert W. DuBois and Sarah DuBois, his wife; Louis B. DuBois and Elizabeth A. DuBois, his wife; Magdalena B. Burhans and Forman Burhans, her husband; Mary J. DeGraw and Edwin -S. DeGraw, her husband; .'Abraham Wood, Jr., William Wood, Mary Wood, Matilda Wood, Abraham Wood. The plaintiff having presented to me a verified complaint in this action, which is hereto annexed, showing a cause of action for which judgment is therein demanded against the defendants, Louis B. DuBois and Elizabeth A. DuBois, his wife, Magdalena B. Burhans and Forman Burhans, her husband, Mary J. DeGraw and Edwin S. DeGraw, her husband, and having also, by the annexed affidavit, made and verified by him on the 28th day of July, 1886, made proof to my satisfaction that the said defendants are not residents of this State and that personal service cannot, with due diligence, be made upon them within this State: Now, on motion of James McPherson, attorney for the plaintiff, it is ordered, that service of the summons and complaint in the above-entitled action upon the defendants, Eouis B. DuBois and Elizabeth A. DuBois, his wife, Magdalena B. Burhans and Forman Burhans, her husband, Mary J. DeGraw and Edwin S. DeGraw, her husband, be made by publication thereof, with the notice required by law, in two newspapers to-wit: in the Kingston Daily Leader, published in the city of Kingston, in the county of Ulster, and State of New York, and in the EUenville Journal, published in the village of EUenville, in the county of Ulster, and .State of New York, once a week for six successive weeks, or at the option of the plaintiff, by service of the summons and copy of the complaint and of this order, with the notice required by law, upon the said defendants personally, without the State. And it is further ordered and directed, that on or before the day of the first publication, the plaintiff deposit in the post-office at Kingston, Ulster county. New York, sets of copies of the summons and complaint hereto annexed and of this order, each contained in a securely closed post-paid wrapper, directed to the following defend- ants, respectively, at the places designated below: Louis B. Dubois, 59 Tears ave., Jersey City Heights, New Jersey. Elizabeth A. DuBois, 59 Tears ave., Jersey City Heights, Jersey City, New Jersey, Magdalena B. Burlians, .;5i2 Brown street, West Philadelphia, Pa. l66 PARTITION. Art. 7. Matters of Practice. Forman Burhans, 4512 Brown street, West Philadelphia, Pa. Mary J. DeGraw, 12 16 Moseley street, Philadelphia, Pa. Edwin S. DeGraw, 1216 Moseley street, Philadelphia, Pa. Dated Kingston, N. Y., July 29, 1886. A. B. PARKER, J. S. C. Precedent for Notice Subjoined to Summons for Publication. To John H. Griffin, Jacob Griffin and Henrv Krum : The foregoing summons is served upon you by publication, pursuant to an order of Hon. Alton B. Parker, a justice of the Supreme Court of the State of New York, dated the 14th day of December, 1887, and filed with the complaint in the office of the clerk of the county of Ulster, in the city of Kingston, Ulster county, in said State. The object of this action is to make partition according to the respective rights of the parties and, if it appears that partition can- not be made without great prejudice to the owners, then for a sale of the following described property. (Brief description.) Dated December 14, 1887. g D HOOD, Plaintiff's Attorney. Sub. 2. Defence, how Pleaded and Effect. The objection that a defendant in partition is not a proper or necessary party, can be taken only by an answer disclaiming all interest, and not by demurrer to the complaint for failure to state a cause of action. Barnes v. Blake, 59 Hun, 371, 36 St. Rep. 210, 20 Civ. Pro. R. 17, 13 Supp. 'j'j. In Middlcbrook v, Travis, 66 Hun. 510, 50 St. Rep. 149, 21 Supp. 398, it was held that a demurrer by a co-defendant to a complaint in a partition suit, on the ground that as to him it did not state facts sufficient to constitute a cause of action, was held frivolous. A defendant in an action of partition cannot demur to an answer served upon him by a co-defendant. Stuart v. Blatchley, yy Hun, 425, 60 St. Rep. 48, 28 Supp. 800, affirming 8 Misc. 472, 29 Supp. 547, 60 St. Rep. 602. It was held that the answer set up a valid counterclaim where it alleged that the defendant, being the equitable owner of the land in question under contract of purchase, agreed to give plain- tiff an interest therein, the title to be taken in their joint names and plaintiff to pay the balance of the purchase price and advance certain moneys, and that plaintiff failed to fulfill the contract. Miekelv. Halheimer, 10 N. Y. Sup. 489; s. c. 32 St. Rep. 348. PARTITION. 167 Art. 7. Matters of Practice. An answer, setting up a defective pleading that other persons not joined had contingent interests under the will, should not be required to be made more definite and certain by setting out the portions of the will giving such interests to such persons, where the complaint does not set forth the will, but merely gives a sum- mary of it. Eisner v. Eisner, 89 Hun, 480, 35 Supp. 393. In an action for partition, it seems that persons claiming an interest or lien upon the premises sought to be partitioned will be obliged, to litigate the validity thereof with a co-defendant who controverts their interest or lien, notwithstanding all the allega- tions in the complaint, relating to their interests in the premises, have been stricken out by the order of the court; Hagcrty v. Andrezvs, Court of Appeals, 4 Civ. Pro. R. 323. It is said that it is not absolutely necessary for a guardian ad litem to put in an answer; Bogart v. Bogarf, ^^ Barb. 121 ; and that such omi.ssion will not affect the title; AltJiause v. Paddle, 3 Bosw. 410 ; but where the facts render a special answer necessary, it is the duty of the guardian to interpose it. Knickcrbacker v. Defreesf, 2 Paige, 304. See Rule 50 as to duty of guardian requiring him to make the proper defence when necessary for the interests of the infant. Sub. 3. Miscellaneous Matters of Procedure. Proceedings regulating partition where the people are a party are regulated by § 6 Public Lands Law, Chap. 1 1 General Laws and ^ 273 Fisheries, Game and Forest Law, Chap. 31, General Laws. The mere issuing of a summons is not the commencement of an action for general purposes. Kerr v. Mount, 28 N. Y. 659. An action is commenced by the service of a summons. § 416, Code. As a general rule, an action is not commenced until the service of a summons. Wiggin v. Orser, 5 Duer, 118. The filing of a sum- mons and complaint is not the commencement of a suit, nor is the filing of a lis pendens, except as constructive notice to pur- chasers. Haynesv. Ondcrdonk, 2 Hun, 519, 5 T. & C. 176. It was held in Warner v. Warner, 57 St. Rep. 763, citing Hayncs v. Onderdonk, 2 Hun, 519, 5 T. & C. 176, supra ; Boy 1st on v. Wheeler, 5 T. & C. 176, that where a defendant in an action of partition had not been served, its pendency was no ground for the abatement of a subsequent action brought for the same purpose by such a defendant. Kerrv. Mount was also cited as sustaining the proposition ; also Ex 1 68 PARTITION. Art. 7. Matters of Practice. parte Griszvold, 1 3 Barb. 412; Trtist Co. v. Dickson, 9 Abb. 61 . It is further held in the principal case that if each tenant in common should commence an action, the court would have no difficulty upon motion, in consolidating the actions or in making such direction as would assure an orderly procedure in them. An omission of proof of serving a copy of summons and com- plaint may be supplied tunic pro tunc. Herbert v. Smith, 6 Lans. 493- The service of summons on the defendant, who left home at the age of nineteen and has not been heard from in eighteen years, by publication against him and his wife, if any, his heirs, grantees, devisees or assignees as unknown defendants, is sufficient to bind the heirs of such defendant, whoever they may be. Guycr v. Raymond, 8 Misc. 606, 29 Supp. 395, 61 St. Rep. 54. A summons may be amended after judgment and sale where the names of certain defendants were omitted from the summons filed, the defendants having been actualh' made parties. Van IVyck V. Hardy, 11 Abb. N. C. 473, affirmed 4 Abb. Ct. of Ap. Dec, 496. The statutory directions as to filing /is pendens, with the decis- ion relating thereto, will be found at ^ 1670 to 1674, which see for the authories on the subject. Where an action has been begun under ^ 1537 and the plaintiffs allege that a devise is void because of the testator's incompetency and of undue influence, a motion made by defendant for a bill of particulars requiring the plaintiff to state in what particular the execution of said will was defective, also any particular or special act or false representation relied on as establishing undue influence, will be denied. Ifarjard v. lUrdsall, 61 Hun, 208, 40 St. Rep. 707. Where the defence to a partition suit b}' the only defendant appearing, was another action pending, and it appeared that sixty days before he had commenced an action filing the summons, complaint and lis pendens, by serving one or two defend- ants, not including plaintiff in the present action, it was held that the plea would not avail. Warner v. Warner, 6 Misc. 249, 57 St. Rep. 763, 27 Supp. 160. Where the court has jurisdiction of all the parties and guardian ad litem had been appointed for non-resident infant defendants before the time for publication had expired, a judgment entered PARTITION. 169 Art. 7. Matters of Practice. is voidable at the election of the infant.s, upon an application sea- sonably made, and the purchaser will not be compelled to take the title. Crontcr v. Crontcr, 133 N. Y. 55, 44 St. Rep. 315, affirming 43 St. Rep. 438, 17 Supp. 758. Where a defendant in a partition action set up a claim under a mortgage to all the premises, but did not serve the answer on the other defendants; held, she was not entitled to a judgment for payment by partition as a mortgagee. Weston v. Stoddard^ 60 Hun, 290, 38 St. Rep. 46, 14 Supp, 580. The practice of entering in the first instance an interlocutory judgment to be followed by a final judgment upon the termination of the proceedings, authorized by the interlocutory judgment, pre- vailed in chancery and is authorized and required by the Code. Mingay v. Lackey, 142 N. Y. 449, 60 St. Rep. 98, affirming 74 Hun, 89, 57 St. Rep. 270, 26 Supp. 161. Where the death of a party rendered impossible the execution of a portion of the interlocutory judgment, it is proper for the court to amend it by striking out such provision. Mingay v. Lackey, 142 N. Y. 449, 60 St. Rep. 98. Where an action has been brought in good faith but by mistake, not attributable to any want of care on the part of the plaintiff, a necessary defendant has been omitted and the persons having no interest in the property have been joined, an application to bring in such necessary party, drop the names of the others from the title of the action, and amend the complaint accordingly, should be granted. Hall v. Campbell, yy Hun, 567, 28 Supp. 103 1, 60 St. Rep. 487. Where the answers concerning a lot which defendants claimed under a contract of sale on which they made payments to plain- tiff's ancestor, were withdrawn from the action, held t\\?it an order to amend the judgment by inserting the description of the prop- erty was properly denied. Baskin v. Liigalls, 88 Hun, 618, 68 St. Rep. 391, 34 Supp. 402. Even though a court improperly orders a sale instead of the dis- missal of the complaint, the judgment cannot be subsequently vacated on motion. Prioj- v. Prior, 15 Civ. Pro. R. 436, 18 St. Rep. 566, 49 Hun, 502, following Reed v. Reed, 107 N. Y. 545. A jurisdictional defect cannot be remedied by amendment ]iunc pro tunc. The presumption is that a proper party who is not brought into the suit is prejudiced. O' Grady v. O'Grady, 55 I/O PARTITION. Art. 7. Matters of Practice. Hun, 40. See also O Comr v. McMahon, 7 N. Y. Sup. 225, 26 St. Rep. 596, Miller v. Wright, 109 N. Y. 194. Mere irregularities may be amended nunc pro tunc. Bogcrt v. Bogcrt, 45 Barb. 121 ; Noble v. Crovnvcll, 27 How. 289; Rogers V. McLean, 34 N. Y. 536. And papers may be so filed. Waring V. Waring, 7 Abb. 472; Croghan v. Livingston, 17 N. Y. 218. An order may be entered nunc pro tunc as of a time anterior to the death of a party who died after argument on appeal. Bergen V. Wyckoff, 84 N. Y. 659. (^n the death of one of the parties, those who have succeeded to his interest may be substituted within the year without notice to the others who have no interest in the question. Gordon v. Stering, 13 How. 405. Where par- tition is made within three years of the death of the former owner, the purchaser may have a reference to ascertain whether there are any unpaid debts, and whether there is a will. Disbroiv v. Folger, 5 Abb. 53. If the plaintiff die pending the advertisement of sale, and one of his heirs be substituted as plaintiff, it is not necessary to advertise anew, changing the title of the cause. T/nuingw. TJnving, 18 How. 458. The report of a referee may be corrected by the court. Safford v. Safford, 7 Paige, 259; Carpenter v- Schernicrhorn, 2 Barb. Ch. 314. Where the referee reports correct conclusions of fact in a refer- ence in partition to " inquire and report," but erroneous conclu- sions of law thereon, upon the coming in of the report, the court is not required to .send it back for correction, but may without exceptions or independent of them, draw the proper legal conclu- sions from the facts. Austin v. Ahearns, 61 N. Y. 6. Where the answer of the defendant put in issue the allegation of tenancy in common and alleged title in himself, by virtue of a contract of sale to him, and the referee found against the defend- ant on those issues, it was held that the question of title was proper subject of trial in the action. And that if the possession of the premises was at the time of the commencement of the action in the defendant adversely to plaintiffs, plaintiffs could not bring the action, Hulse v. Hulse, 23 St. Rep. 123 ; S. C. 17 Civ. Pro. R. 92. Where in an action of partition, the true condition of the account between the respective parties is one of the main questions pre- sented by the case, although other issues should be involved, an order of reference is proper. Brozvn v. Brown, 52 Hun, 532, 23 St. Rep. 768. PARTITION. 171 Art. 7. Matters of Practice. Where the answer does not raise an issue, a motion for judg- ment upon the pleadings is not the proper way to raise the ques- tion and the proper practice is to move for a reference to take proof of the plaintiff's title and interest in the premises and of the matters set forth in the complaint. Tilton v. Vail, 24 Weekly- Dig. 76. Chapter 289 of the Laws of 1895, amends § 791, subd. 6 of the Code by including therein actions for partition as pre- ferred. By § 982, the place of trial is in the county where the property, or some part of it, is situated. This applies to equitable as well as other actions; BusJi v. Treadzvell, 11 Abb. (N. S.)27; and the power of a judge to adjourn a special term to another county does not authorize him to change the place of trial of a local action. TJie Biiighamton Iron Foundry v. Hatfield, 43 N. Y. 224. The Supreme Court has no power under § 817, to consolidate two actions for partition, where the subject of one is land situate in one county, and of the other, land situate in another county, and where one or more of the parties to the one are not parties to or interested in the other. Mayor v. Coffin, go N. Y. 312. Two actions for partition of lands situated in different counties cannot be consolidated, where some of the defendants in one of the action are not parties to the other action. Mayor v. Mayor, II Abb. N. C. 367, reversing 27 Hun, 610. The granting of a new trial as to one of the issues in an action of partition does not necessarily require a retrial of all the issues. Lavcllc V. Corrignio, 86 Hun, 135, 33 Supp. 376, 6^ St. Rep. 122. Where an action of partition is brought, and lis pendens filed, but the action is not proceeded with with reasonable dispatch, one named as a defendant, but who has not been served with the sum- mons, may apply to have plaintiff's proceeding vacated. Lyle v. Smith, 13 How. 104. Where a plaintiff moved to set aside proceedings in a suit brought by a defendant for partition, on the ground that an action for the partition of the same premises had been previously brought by the plaintiff, the motion was denied on the ground that the remedy was by answer in the last suit, unless it appeared on the face of the complaint, and then by demurrer. Hornfager v. Hornfager, 6 How. 279. It is said that a new trial will be granted in partition on slight grounds. Clayton V. Yorrington, 33 Barb. 144. And that application for leave to 172 PARTITION. Art. 7. Matters of Practice. discontinue after judgment is addressed to the discretion of the court. Furvian v. Fiirman^ 12 Hun, 441. Where in partition the defence was that the plaintiff was sole owner, the complaint was properly dismissed on the merits. Tatar V. Tatar, 29 St. Rep. 886. The same course was followed, dismissing the action as to a parcel to which there were no undivided interests, and continuing as to others in l^aii ScJiaack v. Saunders^ 24 Week. Dig. 225. Sub. 4. Appeals. An appeal cannot be taken to the Court of Appeals from the in- terlocutory judgment directing a sale but, on final judgment, the interlocutory judgment may be reversed. §§ 1301, 1316, 1317, 1 337, Code of Civil Procedure ; Bccbc v. Griffing, 6 N. Y. 465 ; Cru- gcr V, Douglass, 2 N. Y. 571 ; Tovipkins v. Hyatt, 19 N. Y. 534. An appeal to the Court of Appeals, on the question as to whether an actual partition or sale was proper, will be sustained only for manifest error. Scott v. Guernsey, 48 N. Y. 106. A party to an action of partition may not receive and accept the amount awarded to him by a judgment and appeal therefrom ; he thereby waives the appeal. Alexander v. Alexander, 104 N. Y. 643. The Court of Appeals has no jurisdiction to review an inter- locutory judgment rendered, as provided for by the Code of Civil Procedure, ^ 1 546, in an action for partition, except upon an appeal from the final judgment. Tiltan v. Vail, 117 N. Y. 520. It seems that as the Code provides, § 1 544, that issues of fact in an action of partition are triable by a jury, the trial court may not disregard the findings of the jury, and exceptions taken on the trial before the jury, may be considered upon the appeal from the judgment. Joiics v. Jones, 120 N. Y. 589. Where on an application by a purchaser to be relieved from his bid, it appeared that he had been negligent in obtaining full and accurate information, it was held to be in the discretion of the court below as to whether or not the relief .should be granted, and denial of relief not appealable to Court of Appeals. Dcnnerlem V. Dennerlem, in N. Y. 518. PARTITION. 173 Art. S. Receiver. ARTICLE VIII. Receiver. A receiver and injunction will not be granted in partition unless the right of the application is clear. Patterson v. McCuim, 46 How. 182. Where one of the parties has a portion of the estate and has been in the habit of collecting the rents, as he alleges, for the protection of the income from waste, a receiver should be appointed on an affidavit alleging on information and belief that such party is of little or no responsibility. Darcin v. Wells, 61 How. 259. Where one of two tenants in common refuses to rent, and unnecessary loss will result to the other, a receiver will be appointed. Pignolet v. BnsJi, 28 How. 9. A receiver should not be appointed on the ground that one of the defendants is in possession, collecting the rents and refuses to account therefor, where the allegation of refusal to account is denied and there is no evidence that such defendant has acted with impropriety or is unable to respond to any claim of the mov- ing party. BatJunann v. DatJimann, 79 Hun, 477, 61 St. Rep. 270, 29 Supp. 959. A receiver may properly be appointed, where it appears that parties are hostile and both endeavoring to collect rents from the tenants of the property, and there is danger of future injury and non-payment of taxes and mortgage interests. Goldberg v. Rieh- ards, 26 Supp. 335, 5 Misc. 419. A receiver appointed in an action of partition, to which all per- sons interested were parties, may maintain an action for rent after the co-tenant in possession has recognized the receiver's title, by joining in the execution of a lease by him in which she agrees to pay him a stated rental. Smith v. Lavelle, 13 Misc. 528. Where the parties to a partition suit agree at the outset to have a receiver if it seem reasonably necessary to preserve and maintain the rights of the parties, the court will act. Bowers v. Diirant, 2 St. Rep. 127. But the appointment of a receiver will only be made for the protection of the parties. Vincent v. Parker, 7 Paige, 65. See also Verplank v. Verplank, 22 Hun, 104. The court has power in a partition suit to authorize the receiver to lease the property pendente lite, and absence of notice to the parties of the application for leave to lease is not a jurisdictional 174 PARTITION. Art. 9. What Questions may be Tried in the Action and in What Manner. defect, and does not invalidate the lease executed under it. It seems, however, that notice should be required where a lease has been executed by the receiver under an ex parte order of the court extending beyond the close of the litigation. The court has power to modify or vacate the order, although the rights of the lessee may be affected by it, and it may direct the lessee to be indemnified out of the property. Weeks v. Weeks, 106 N. Y. 626. Whenever it appears, during the prosecution of the suit, that a receiver is necessary to protect the interests of all the parties, the court will, upon proper application, make the appointment. Where the defendants dispute the plaintiff's title and endeavor to delay an accounting for rents and profits, a proper case is made for the interference of the court. Beach on Receivers, § 492. Where, in partition, an estate of a decedent is sought to be distri- buted or will construed upon the death of sole surviving executor, a receiver will be appointd. Code, § 1869. ARTICLE IX. What Questions May be Tried in the Action and in What Manner. §§ 1543, 1544. Sub. r. Title of parties may be tried. § 1543. 2. Issues of fact triable by jury. § 1544. Sub. I. Title of Parties May be Tried. § 1543. § 1543. Title of parties may be tried. The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant ; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section 521 of this act. The issues, joined as prescribed in this sec- tion, must be tried and determined in the action. Whatever a plaintiff is required to state in his complaint the defendant may be required to admit or deny in his answer. Van Cortland v. Beekman, 6 Paige, 492. The defendant may aver anything which will defeat the action or bar plaintiff's right to a judgment. Reed v. CJiild, a^Wow. 125. If plaintiff's posses- sion is denied it must be pleaded; Brownell v. Browne//, 19 Wend. 367 ; and such an objection is too late on appeal. Howe/lw. PARTITION. 175 Art. 9. What Questions may be Tried in the Action and in What Manner. Mills, 7 Lans. 193. Adver.se possession must be pleaded. yen- kins V. \^an Schaack, 3 Paige, 242 ; German v. Mackin, 6 Paige, 288. An answer which sets up nothing more than facts tending to show that the complaint does not truly state the .shares and interests of the parties, raises no issues and does not prevent or delay the usual reference, as upon failure to answer. Nolan v. Skelly, 62 How. 102. A plea that after issue plaintiff had entered upon the lands and holds them is bad, as the claim is not only of possession but of title. Tyler v. Canadaj, 2 Barb. 160. The objection that all the parties are not joint owners or tenants in common of all the par- cels sought to be partitioned, would be available by demurrer or an.swer, but cannot be taken for the first time on the hearing. Beach v. The Mayor, 45 How. 357. It was said, before the enactment of this section, that the equities of adverse claims to portions of the premises could not be set up. Esterbrook v. Savage, 21 Hun, 145; but see the language of the section. In partition by an heir against the widow and the other heirs, an answer alleging a conveyance by deceased to a third person, shows no defence unless they connect themselves with it, and even then their possession must be hostile. Knolls v. Barnhart, 71 N. Y. 474. The fact that the intestate's personal property is insufficient to pay his debts and that the real estate must be resorted to for the purpo.se, is a defence to an action between the heirs-at-law to a partition and should be pleaded. It cannot be used as a basis to .stay proceedings on a motion. Nezvton v. Waller, 12 Week. Dig. 314; but see § 1538 as amended. An a.ssignee of a deficiency judgment against the executors of a testator, obtained upon the foreclosure of a mortgage on premi- ses of which the testator died seized, is not entitled to intervene and serve an answer in a partition suit between the heirs of the testator, in which suit the mortgagee was originally a party and appeared but served no answer. Patterson v. McCunn, 17 Week. Dig. 186. One defendant in partition may set up the statute of limitations against a judgment upon a mortgage against his co- defendant which is more than twenty years old. Barnard v. Onderdonk, 1 1 Abb. N. C. 349. The effect of this section is to allow title to be tried in parti- tion, as well as the bare fact of joint tenancy or tenancy in com- 176 PARTITION. Art. 9. What Questions may be Tried in the Action and in What Manner. mon. Knapp v. Burton, 7 Civ. Pro. R. 448. Superseding several cases holding that title could not be so tried. Liistig v. Spiti- garin, 9 St. Rep. 847 ; see Van Schuyvcr v. Mulford, 59 N. Y. 426, and cases cited; also Therasson v. White, 52 How. 66. The codifiers, in reporting this section, say that " the most common as well as the most difficult case of a disputed title which is likely to arise in such an action is already covered by § 1537, and no reason is perceived why the principle of that section should not be extended to all cases now that the distinction between actions in equity and at law, are abolished, and an ample provision is made for the trial of questions of fact by a jury in equity actions; there is no sufficient reason for driving plaintiff to a new action to try title where it is disputed by the ansv/er. There are many cases where it is much more convenient to settle the whole con- troversy on one action, and it is believed that the provisions of chapter 10 will prevent any serious inconvenience from arising in consequence." The mere putting in an answer by a defendant claiming title to the whole premises, does not oust the court of jurisdiction to ascertain whether the claim of title is well founded, or whether the premises are held adversely. Wainvian v. Hampton, 20 Week. Dig. 68. Under this section the title of the various par- ties to the property may be disputed and determined. SJiannon V. Pickcll, 2 St. Rep. 160. An allegation that the defendant's wife has an inchoate right of dower, and is a necessary party to the action, does not state a defence. Kay v. WJiitakcr, 44 N. Y. 565. A tenant in common may set up that plaintiff has been in sole possession, and collected the rents of the premises, and require an accounting and allowance therefor. McCabe v. McCabc, 18 Hun, 153. See Ford v. Knapp, 102 N. Y. 135. An adverse possession by the defendants for a period less than the time prescribed by law to bar a possessory action is not a defence to an action of partition; the intent of § 1543 being to confer upon the court in which the action for partition may be brought authority to try and determine all questions which may arise between the plaintiff and his co-tenants involving their respective title and right of possession of the property. The fact that by § 1537 it is provided that a party out of possession may maintain the action when he claims by reason of heirship, does PARTITION. 177 Art. 9. What Questions may be Tried in the Action and in What Manner. not limit the right of the party out of possession to maintain an action under § 1543. One of several tenants in common can maintain the action though his co-tenants are in possession hold- ing adversely, where the adverse possession had not been in force a sufificient length of time to extinguish the plaintiff's title. Weston V. Stoddard, 137 N. Y. 119. In opinion, Maynard, J., in that case said : " In recent works on practice of high authority, § 1 543 has been construed as abrogating the rule which prevented a recovery by a disseized co-tenant, and providing for the trial and determination in the partition action of all issues involving title and right of possession of all the parties [citing Rum.sey's Prac- tice, 3d vol. pages 31, 41 ; Fiero on Special Actions, pages 91 and 92.] We perceive no good reason for questioning the soundness of this discussion. The circuity of procedure and the multiplicity of suits are thereby avoided and these were primary objects which the code system of practice had in view." This settles the rule as to which conflicting decisions have been made in Shajmon v. Pickcll, 2 St. Rep. 160; Hulsc v. Hulsc, 23 St. Rep. 123; Jones V. Jones, 6 St. Rep. 736; Greene v. Grceiu\2i St. Rep. 869; Ged- ney v. Prall, 25 St. Rep. 343 ; Knapp v. Bnrton, 7 Civ. Pro. R. 448. Ford V. Knapp, 102 N. Y. 135, is cited and followed in Thomas V. Evans, 105 N. Y. 601, to the point that where a person in peaceable possession under claim of lawful title, but really under a defective title, has in good faith made permanent improvements, the true owner, who seeks the aid of equity to establish his title, will be compelled to reimburse the occupant for his expenditures. The provisions of the Code from §^ 1537 to 1543 inclusive, indicate an intention to authorize all persons having or claiming to have an interest in or lien upon real estate to be made parties to actions of partition, and to authorize the hearing and determi- nation of such conflicting interests in such actions, so that when the real estate in question is divided or sold, all clouds upon the title thereof may be remedied and the title thereto settled. Not only a person who actually has a lien upon or interest in the property sought to be partitioned, but one who apparently has or claims to have a lien or interest in the entire property, may be made a party to the action. Best v. Zeh, 82 Hun, 232, affirmed, 146 N. Y. 363. Under these provisions of the Code, it has been said that all questions arising between the parties in respect to the property as to [Special Actions — 12.] 1/8 PARTITION. Art. 9. What Questions may be Tried in the Action and in What Manner. their respective titles and rights of possession may be determined. Ellerson v. Prcscott, 88 Hun, 389, citing Weston v. Stoddard^ 137 N. Y. 119; Collins V. Collins, 36 St. Rep. 591, affirmed, 131 N. Y. 648; Shannon v. Pickcll, 2 St. Rep. 160. Sub. 2. Issues ok Fact Triable by Jury. § 1544. § 1544. Issues of fact triable by jury. An issue of fact joined in the action is triable by a jury. Unless the court directs the issues to be stated, as prescribed in section 970 of this act, the issues may be tried upon the pleadings. The action of partition is an equitable action, but a jury trial of the issues of fact presented by the pleadings is a matter of right. The Special Term has authority to direct issues of fact to be settled and tried, and that the verdict of the jury be certified to the court for further proceedings, and it is in the discretion of the court whether this course shall be taken, or whether the case shall be placed on the circuit calendar for trial. The form of the issues is discretionary, and the order settling them not reviewable in the Court of Appeals. The issues as settled may be amended on the trial, or additional issues submitted, as the proof warrants. Hewlett v. Wood, 62 N. Y. 75. Where, under the provisions of § 1537, an issue was made, and the party answering suffered default, the plaintiff was held concluded by default, as to the issues. Curry v. Colgan, 3 How. (N. S.) 26. Although there are many defendants and separate appearances, and four distinct issues of fact, two of which relate to distinct pieces of property, and the other two affect undivided .shares in the whole remainder, the case must be tried by a jury if any party objects to a reference; but the action can be severed so as to try before a referee all but the issues raised by a claim of ownership to two pieces of the property. Cassedy v. Wallace, 61 How. 240. It seems that as the Code provides by this section that issues of fact in an action of partition are triable by a jury, the trial court may not disregard the findings of the jury. Exceptions taken, therefore, on the trial before the jury may be considered on appeal from the judgment. The issue of fact provided for by this section is an issue which involves the right to maintain the action. It has no application unless some defence is interposed, which, if successful, will prevent any partition whatever. It does not apply to the case in which the only matters in controversy PARTITION. 179 Art. 10. Reference as to Title and as to Creditors. relate directly or indirectly to the amounts with which the respec- tive shares are chargeable. Brozun v. Broivn, 52 Hun, 532. As the Code provides that issues of fact in an action for parti- tion are triable by jury, the trial court may not disregard the verdict of a jury; the exceptions thereto may be considered on appeal from judgment. Jones v. Jones, 120 N. Y. 589. Hew- lett V. Wood, 62 N. Y. 75, is cited with approval upon this point in Weston v. Stoddard, 137 N. Y. 119, and in Boz^'en v. Sweeney, 143 N. Y. 349, it is held that where in an action of par- tition, issues of fact were framed for a jury and trial so had, and upon consent of the parties further hearing was had at special term, and the court made findings and conclusions of law incorpo- rating findings of the jury, and an interlocutory judgment was entered, that a motion for a new trial at General Term was prop- erly dismissed, that the issues in the action were triable by a jury as matter of right and the facts found were binding upon Special Term, so that the trial was not by the court without a jury within the meaning of § looi authorizing a motion for a new trial after entry of an interlocutory judgment. An action in partition is triable by a jury, but where at the request of plaintiffs the action has been tried by the court, plaintiffs can- not complain if the court upon appeal determines the question as to the right to mainain the action, as if the case were one triable at Special Term. Side v. Brenneman, 7 App. Div. 273. An order in an action for partition, that the issues of fact be tried by a jury is proper, but such order should direct a verdict to be certified to the Special Term and not to the judge granting the order. Cuthbert v. Ives, 48 St. Rep. 740. ARTICLE X. Reference as to Title and as to Creditors. §§ 1545, 1 561, 1562. Rule 66. Sub I. Reference as to title, § 1545. Rule 66. 2. Reference as to creditors. §§ 1561, 1562. Sub. I. Referencf, as to Title. Rule 66. § 1545. When title to be ascertained by the court. Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares, and interests of the several parties in the property, by a reference or otherwise, before interlocu- tory judgment is rendered in the action. l80 PARTITION. Art. lo. Reference as to Title and as to Creditors. Rule 66. — Reference as to title. Where the rights and interests of the several parties, as stated in the com- plaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply at a Special Term for an order of reference, to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the complaint; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyance by which the same are held. Such referee shall, in all cases, be selected by the court. The court may direct a reference to inquire into the Hen of judgment.s recovered against executors, although not strictly .statutory liens upon the lands when they are chargeable thereon, there being no personal estate. Piatt v. Piatt, 4 St. Rep. 50. Where an answer has been interposed which fails to raise an issue, the proper practice is to move for a reference to take proof of plaintiff's title and interest in the premises, and of the matters set forth in the complaint, and a motion for judgment upon the pleadings is properly denied. Tilton v. / «//, 24 Week. Dig. "j^. The referee should require the complainant to produce abstracts of title, as a tenant in common of the premises, and to trace it back to the common source of title of the tenants in common ; and he should give an abstract of the conveyances of the several undi- vided shares of the parties in the premises from the time the seve- ral shares were united in one common source. Hamilton v. Morris^ 7 Paige, 39. If the referee states explicitly that he has caused the necessary searches to be made, and certifies what incumbrances there are, it is sufBcient, and he is not required to annex to his report a search for mortgages, etc., affecting the title. Noble v. Croimvcll, 27 How. 289. It is, however, usual and the better practice to do so. Whether land sold on a partition sale should be sold in parcels or not, is usually left to the referee to decide, subject to the approval of the court. Under/nil v. Undcr- hill, 4 St. Rep. 858. The facts should be reported making a sale necessary; it is not sufficient to give an opinion. Tucker v. Tucker, 19 Wend. 226. As judgments do not cease to be a lien again.st heirs-at-law at the end of ten years, parties who do not advertise for liens should produce, at their own cost, searches for at least twenty years. Hall \f. Partridge, 10 How. 188. The referee is authorized to take proof and pass upon the question as to the validity of a mortgage, upon an undivided share claimed by one of the parties, although there is no issue in the pleadings PARTITION. l8l Art. lo. Reference as to Title and as to Creditors. raising the question. Halstcdv. Halstcd, 55 N. Y. 442. He is to report as to whether an actual partition can be had. Wa/lcr v. Waller, 3 Abb. N. C. 12. Where the report states that the portion set off for the widow's dower constitutes a valuable farm, and if divided among the heirs the parcel assigned to each would be so small as to be of little value and would naturally lessen the value of the whole, the reason assigned is entirely satisfactory, and the same reason would be suffi- cient for the court to authorize a sale thereof subject to the widow's dower. Post v. Post, 65 Barb. 193. A referee appointed in partition to take proof, etc., is bound by the plead- ings and cannot find the interests of the parties otherwise than as stated or admitted in such pleadings. McAlcar v, Dclancy, 19 Week. Dig. 252. And the sale of leased lands may be made sub- ject to the rights of the lessees who thereby become the tenants of the purchasers. WoothvortJi v. Campbell, 5 Paige, 518. So the furniture of a hotel may be sold with it if it appears that in that way the property can be disposed of to better advantage than in any other. Prentiee v. Jansseii, 79 N. Y. 478. Where the court has jurisdiction, its determination as to whether there shall be a sale or partition is conclusive. Clemens v. Clemens, 37 N. Y. 59; Seott V. Guernsey, 48 N. Y. 106. The plaintiff is concluded by a default as to the facts in issue. Curry v. Colgan, 3 How. Pr. (N. S.) 26. Where, under an order of reference to inquire and report, the referee reports correct findings of fact but erroneous conclusions of law thereon, Special Term is not required to send it back for correction, but may, without exception, draw the legal conclu- sions from the facts. Austin v. Ahearne, 61 N. Y. 6, Precedent for Notice of Application for Order of Reference. SUPREME COURT — Albany County. JOHN W. McHARG and HARRIETTS D. McHARG, HIS Wife, Plaintiffs, ngs(. RUFUS K. McHARG and HARRIET S. McHARG, HIS WIF^;, and Othkrs, De- fendants. (■ Sirs. — You will please take notice that upon the summons and com- plaint and the supplemental summons and amended complaint in this l82 PARTITION. Art. lo. Reference as to Title and as to Creditors. action with proof of service thereof upon the defendants, and upon the affidavit of Marcus T. Hun, verified the 22d day of December, 1891, a copy of which is herewith served upon you, and upon all the papers heretofore served and proceedings had in the above-entitled action, the Supreme Court will be moved at a Special Term thereof to be held at the City Hall, in the city of Albany, on the 29th day of December, 1891, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order appointing a referee to ascertain the rights, shares and interests of the several parties in the property sought to be partitioned in this action, and an abstract of the conveyances by which the same are held, and to take proof of the plaintiff's title and interest in said premises and of the several matters set forth in the complaint and to report whether said property or any part thereof is so circumstanced that a parti- tion thereof cannot be made without great prejudice to the owners, and for such other and further relief as may be proper. Yours, etc., MARCUS T. HUN, Attorney for Plaintiffs. To Hon. Charles F. Tabor, Attorney-General, Attorney for the Defendant, the People of the State of New York; Frank W. Stevens, Esq., Attorney for Robert N. Marvin and Elizabeth Marvin, and for Robert N. Marvin, guardian ad litem for Isabella Marvin and Maude Marvin. Precedent for Affidavit on Motion for Order Appointing Referee in Partition. SUPREME COURT — Albany County. JOHN W. McHARG and HARRIETTE D. McHARG, HIS Wife, Plaintiffs, agst. RUFUS K. McHARG and HARRIET S. McHARG, his Wife, and Others, De- fendants. State of New York, Albany City and County, Marcus T. Hun, of said city, being duly sworn, says that he is the attorney for the plaintiffs in the above-entitled action. That said action has been brought to obtain a partition of a sale and division of the proceeds of the real property described in the complaint, among the owners thereof, according to their respective interests therein; and to pass the accounts of the plaintiff John W. McHarg on account of rents received by him from said property. That the summons has been duly personally served upon all the defendants herein, within the State of New York, more than twenty PARTITION. 183 Art. 10. Reference as to Title and as to Creditors. days since, except upon the defendants Fredericka B. McHarg, Richard P. Marvin, Jr., William Donaldson, John M. Wood, Sophia K. Porter, Grace Ann Mattocks, Dudley W. Mattocks, Mary E. Goodrich, Katharine F. Clarke, Francis W. Forbes, John Doe, Richard Roe, Jane Smith and Mary Jones (the last four names being fictitious names), who have been served by publication, pursuant to an order of Hon. Samuel Edwards, a Justice of the Supreme Court, more than twenty days since. That on November 6th, 1891, an order was made by the Special Term of the Supreme Court, upon due notice, to all the parties en- titled thereto, making Evelyn N. Post and Daniel H. Post, her hus- band, and also John J. Kinney and Frederick A. Bentley, as execu- tors under the last will and testament of Robert Newland, deceased, parties defendant herein ; which order also directed the issuance of a supplemental summons, directed to said Evelyn N. Post, Daniel H. Post, her husband, and to John J. Kinney and Frederick A. Bentley, as executors under the last will and testament of Robert Newland, deceased; and also allowed the plaintiffs to serve an amended complaint. That said persons, so made defendants by the order of November 6th, 1891, have duly appeared herein; that the time to answer has expired as to all of the defendants; and that no answer, demurrer, or notice of appearance has been received from them, or any of them, except that the defendant The People of the State of New York has appeared herein by Hon. Charles F. Tabor, its attorney- general, but has not answered or demurred. That the defendants John J. Kinney and Frederick A. Bentley, as executors under the last will and testament of Robert Newland, deceased, Evelyn N. Post and Daniel H. Post, her husband, having appeared herein by Frank W. Stevens, Esq., their attorney, but have not answered or demurred. That the defendants Isabella Marvin and Maude Marvin are infants, and that Robert N. Marvin has been appointed their guardian ad litem, by an order duly granted by this court. That said Robert N. Marvin, as such guardian, has appeared herein by Frank W. Stevens, his attorney, who has interposed the usual general answer on behalf of said infants, not denying any of the material allegations of the complaint, and submitting the rights of said infants to the protection of the court. That the defendant Katharine L. Clarke is an infant, who has appeared herein by James Fenimore Cooper, Esq., her guardian ad litem, who has interposed the usual general answer on behalf of said in- fant, not denying any of the material allegations of the complaint, and submitting the rights of said infant to the protection of the court. That none of the defendants, other than those so stated to be, are infants or absentees. That certain of said defendants are desig- nated by fictitious names, but whether said persons so designated have any interest in the premises in question, or whether they are infants or not, this deponent is unable to state. That a notice of the pendency of the above-entitled action, and an amended notice of the pendency of the above-entitled action, con- 1 84 PART mux. Art. lo. Reference as to Title and as to Creditors. taining the names of the parties thereto, the object of the action and a description of the property affected thereby, together with the complaint herein and the amended complaint herein, were duly filed in the office of the clerk of Albany county, more than twenty days since. (Jurat.) (Signature.) Precedent for Order of Reference. At a Special Term of the Supreme Court of the State of New York, held at the City Hall in the city of Albany, on the 29th day of December, 1891. Present — -Hon. Stephen L. Mayham, Justice. SUPREME COURT — Albany County. JOHN V. McHARG and HARRIETTS D. McHARG, His Wife, Plaintiffs, agst. RUFUS K. McHARG and HARRIET S. McHARG, His Wife, and Others, De- fendants. On filing proof of the personal service of the summons and com- plaint in this action upon the defendants Rufus K. McHarg, Harriet S. McHarg, his wife; Charles K. McHarg, Harriet P. McHarg, his wife; William N. McHarg and Selima S. McHarg, his wife; Henry K. McHarg, Franklin Clarke and Louie O. Clarke, his wife; Selden E. Marvin and Katharine L. Marvin, his wife; Robert N. Marvin and Elizabeth Marvin, his wife, David F. Cassort and Flora A. Cas- sort, his wife; Horace Porter, Francis N. Forbes, Katharine N. Cornell, J. William Cornell, her husband; Sarah Jane Hall and Erie L. Hall, her husband, Isabella Marvin, Maud Marvin, Margaret E. Cassort and Franklin D. Cassort, her husband; and the People of the State of New York; and on filing due proof of the service of the summons upon the defendants, Fredericka B. McHarg, Richard P. Marvin, Jr., William Donaldson, John M. Wood, Sophia K. Porter, Francis W. Forbes, Katharine F. Clarke, Grace Ann Mattocks, Dudley W. Mattocks, Mary E. Goodrich, John Doe, Richard Roe, Jane Smith and Mary Jones (the last four names being fictitious names) by publication, pursuant to an order of Hon. Samuel Edwards, a Justice of the Supreme Court, and On filing a notice of the pendency of this action in the Albany county clerk's office more than twenty days since; and it appearing that John J. Kinney and Frederick A. Bentley, as executors under the last will and testament of Robert Newland, deceased, Evelyn N. Post, and Daniel H. Post, her husband, who were made parties defendant herein by an order duly granted on the 6th day of Novem- ber, 1 89 1, have appeared herein; and PARTITION. 185 Art. 10. Reference as to Title and as to Creditors. On reading and filing the afifidavit of Marcus T. Hun, Esq., verified the 22d day of December, 1891, proving that none of said defendants who are known to the plaintiffs are infants, except the defendants Isabella Marvin, Maud Marvin, and Katharine F. Clarke. That none of said defendants are absentees, except those above mentioned as having been served with the summons herein by publication. That the time to answer has expired as to all of said defendants; and that no answer, demurrer or notice of appearance has been received herein, except that the defendant the People of the State of New York has appeared herein by Hon. Charles F. Tabor, its attorney-general; but has not answered or demurred. That the defendants John J. Kinney and Frederick A. Bentley, as executors under the last will and testament of Robert Newland, deceased, Evelyn N. Post and Daniel H. Post, her husband, have appeared herein by John J. Kinney, Esq., their attorney; but have not answered or demurred. That the defendants Robert N. Marvin and Elizabeth Marvin have appeared by Frank W. Stevens, Esq., their attorney, but have not answered or demurred. That the de- fendants Isabella Marvin and Maud Marvin are infants, for whom Robert N. Marvin has been appointed guardian ad litem^ and that he has appeared herein as such guardian by Frank W. Stevens, Esq., his attorney, who has interposed the usual general answer on behalf of said infants not denying any of the material allegations of the complaint, and submitting the rights of said infants to the protec- tion of the court. That the defendant Katharine F. Clarke is an infant, and has appeared herein by James Fenimore Cooper, Esq., her guardian ad liiein^ who has interposed the usual general answer on behalf of said infant, not denying any of the material allegations of the complaint, and submitting the rights of said infant to the protection of the court; and On reading and filing proof of service of due notice of this motion on Hon. Charles F. Tabor, Attorney-General, for the People of the State of New York; Frank W. Stevens, Esq., attorney for Robert N. Marvin, Elizabeth Marvin, his wife, and Robert N. Marvin, guardian ad litem for Isabella Marvin and Maud Marvin, John J. Kinney, attorney for John J. Kinney and Frederick A. Bentley, as executors under the last will and testament of Robert Newland, deceased, Evelyn N: Post, and Daniel H. Post, her husband, and James Fenimore Cooper, Esq., guardian ad litem for Katharine F. Clarke, and after hearing Marcus T. Hun, Esq., on behalf of the plaintiffs, and due deliberation having been had, it is. Ordered, That William Bayard Van Rensselaer, Esq., of the city of Albany, a counselor of this court, be and he is hereby appointed a referee in the above entitled action, to ascertain and report the rights, shares and interests of the several parties to this action, in the property described in the complaint and of which a partition is sought; and of the rents so collected, and an abstract of the conveyances by which the same are held ; and to take proof of the plaintiff's title and interest in said premises; and of the several matters set forth in the complaint and amended complaint; and to report whether the property, or any part thereof, is so cir- 1 86 PARTITION. Art. lo. Reference as to Title and as to Creditors. cumstanced that a partition thereof cannot be made without great prejudice to the owners; and if he arrives at the conclusion that a sale of said property or any part therof is necessary; then, that he ascertain whether there is any creditor, not a party to this action, who has a lien upon the individual share or interest of any party. A. C. REQUA, Clerk. Precedent for Report of Referee as to Interests, etc., of Par- ties and Abstract of Title. SUPREME COURT. DUBOIS L. HORNBECK agst. EMZEY HORNBECK, etc. To the Supreme Court of the State of Neiv York : In pursuance of an order of this court, made in the above-entitled action on the 8th day of December, 1887, by which it was referred to the undersigned to hear and determine the issue made by the answer of the defendant, Rachel Hornbeck, herein, and to take proof of the title of the respective parties in the said premises and report thereon to this court, with an abstract of the conveyances by which the title is held, and also to inquire and report whether the whole premises or any lot or separate parcel thereof is so circumstanced that an actual partition cannot be made, and if the undersigned should so determine and that a sale of the whole or a part thereof was neces- sary, that the undersigned should specify the same in his report, together with the reasons which render a sale necessary, and in such a case that the undersigned also ascertain and report whether any creditor not a party to the action having a specific lien by mort- gage or devise or otherwise upon the undivided share or interest of any of the parties in that portion of the premises which is necessary to sell, and that he then further inquire and report whether the un- divided share or interest of any of the parties in the premises is subject to a general lien or incumbrance by judgment or decree. And it was further ordered, that the undersigned ascertain and report the amount due to any party to the action who has either a general or specific lien upon the premises to be sold, or any part thereof, and the amount due to any creditor not a party to the action who has a general lien on any undivided part, share or interest therein, Dy judgment or decree, and who shall appear and establish his claim on such reference. I, the subscriber, referee as aforesaid, do respectfully report: That I have been presented with a search, certified by the clerk of Ulster county, in and by which it appears that there is no general or specific lien or incumbrance on the whole premises or upon any PARTITION. 187 Art. 10. Reference as to Title and as to Creditors. undivided share or interest therein held by any party, either a party to this action or otherwise. 1 further report that 1 have taken proof and that there are no general or specific liens or incumbrances on the whole of said premi- ses, or upon any undivided share or interest therein held by any party, either a party to this action or otherwise, and that the only possible lien there may be on said premises is the lien which is made by statute of the debts of Henry B. Hornbeck, deceased, on the said premises and the amount of such debts, if any, I am not able to state, as the administrator of said estate has not yet advertised for claims against said estate. That 1 have been attended by the several attorneys who have appeared in this action, and have taken proof of the several matters submitted to me. That 1 have taken proof of the several material matters set forth in the complaint, and find that the material facts alleged therein are true. That the following is an abstract of the conveyances by which the premises described in said complaint are held, that is to say: Nicholas Elmendorf and wife to Henry B. Hornbeck. Warranty deed dated June i, 1850. Recorded in Ulster county clerk's office. Book of Deeds No. 76, at page 250, June 8, 1850. Consideration $500. Conveys sixty acres, part of land in question. DuBois Hornbeck and wife to Henry B. Hornbeck. Full covenant deed dated June 8, 1872. Recorded in Ulster county clerk's office. Book of Deeds No. 176, page 508, June 10, 1872. Consideration, $750. Conveys one acre, part of property in question. Jacob Davis and wife to Henry B. Hornbeck. Full covenant deed dated February 24, 1872. Recorded in Ulster county clerk's office. Book of Deeds No. 176, page 5 10, June 10, 1872. Consideration, $1,000. Conveys forty acres, part of property in question. Daniel Hasbrouck and wife to Henry B. Hornbeck. Warranty deed dated June 10, 1841. Recorded in Ulster county clerk's office in Book of Deeds No. 56, page 727, June 17, 1841. Consideration, $1,050. Conveys ten acres, part of the premises in question. Henry B. Hornbeck died intestate about the 19th day of Septem- ber, 1887, leaving a widow and his only heirs-at-law as follows: Rachel Hornbeck, his widow; Emzey Hornbeck, a son; Catherine J. Garrison, a daughter; John H. Hornbeck, a son; Alexander Hornbeck, a son; Sylvenus Hornbeck, a son; Peter L. Hornbeck, a son; DuBois L. Hornbeck, a son. I further report that the rights and interests of the parties in the premises are as follows: The defendant Rachel Hornbeck has a right of dower in the whole premises as widow of Henry B. Hornbeck; that the plaintiff, DuBois L. Hornbeck, is entitled to the undivided one-seventh part of said premises, subject to the dower interest of the said Rachel 1 88 PARTITION. Art. lo. Reference as to Title and as to Creditors. Hornbeck therein, and also subject to the inchoate right of dower of his wife, the defendant Sarah Hornbeck, therein; that the de- fendant Emzey Hornbeck is entitled to the undivided one-seventh part of said premises, subject to the dower interest of the said Rachel Hornbeck therein, and also subject to the inchoate right of dower of the defendant Ellen Hornbeck therein; that the defend- ant Catherine J. Garrison is entitled to the undivided seventh part of said premises, subject to the dower interest of the said Rachel Hornbeck therein, and subject to whatever right the court may determine that the defendant Jerome Garrison, her husband, may have therein ; that the defendant John H. Hornbeck is entitled to the undivided one-seventh part of said premises, subject to the dower interest of the defendant Rachel Hornbeck therein and also subject to the inchoate right of dower of his wife, the defendant Francis C. Hornbeck therein; that the defendant Alexander Horn- beck is entitled to the undivided one-seventh part of said premises, subject to the dower interest of the said Rachel Hornbeck therein, and also subject to the inchoate right of dower of his wife, the defendant Delilah Hornbeck therein; that the defendant Sylvanus Hornbeck is entitled to the undivided one-seventh part of said premi- ses, subject to the dower interest of said Rachel Hornbeck therein, and also subject to the inchoate right of dower of his wife, the de- fendant Malinda M. Hornbeck therein; that the defendant Peter L. Hornbeck is entitled to the undivided one-seventh part of said premises, subject to the dower interest of the said Rachel Hornbeck therein, and also subject to the inchoate right of dower of his wife, the defendant Sarah A. Hornbeck, therein; that the defendant Thomas Barringer and Simon Freer are each lessees of a portion of said premises and whose rights are not affected by this action. I do further report that the defendant Rachel Hornbeck has a right of dower in the whole of said premises, that she is of the age of sixty-two years, and that such dower interest should be sold for the reason that to except such dower interest from the sale would seriously impair the saleable value of the whole property, and I fur- ther find that said Rachel Hornbeck is willing to accept out of the proceeds of such sale the present value of her dower interest therein, computed on the principles of life annuities. I do further report that the premises described in the complaint are so circumstanced that an actual partition thereof cannot be made without great prejudice to the owners thereof, and for the reason that there are such a large number of parties in interest that a partition would be difficult, that the most valuable of the property is farming land with farm buildings thereon, and it could not be so divided as not to greatly impair its value, and no partition could be made that would not leave the several seven shares differing greatly in value. I am, therefore, of the opinion that a sale of the whole of said premi- ses is necessary and proper. I annex hereto the clerk's search and the testimony taken before me. OLIVER P. CARPENTER, Referee. PARTITION, 189 Art. 10. Reference as to Title and as to Creditors. Precedent for Like Report in Favor of Actual Partition. SUPREME COURT. NATHAN R. NICKERSON agst. EMMA STEVENS and Others. To the Supreme Court of the State of Netv York : Pursuant to an order of this court, made herein on the 21st day of November, 1887, by which it was referred to me to take proof of the rights, shares and interests of the several parties in the prop- erty and of the several matters set forth in the complaint, and to ascertain and report the rights and interest of the several parties in the premises, and an abstract of the conveyances by which the same are held, and to hear and decide all the issues raised by the pleadings herein, and to inquire and report whether the whole premises, or any part or separate parcel thereof, is so circumstanced that actual partition cannot be made and that a sale of the whole premises, or of any lot or separate parcel thereof, will be necessary and, if neces- sary, that the reason why such sale is rendered necessary be stated, and that in case a sale of said property should be found necessary, it was then further ordered that it be ascertained and a report made whether any creditor, not a party to the suit, have a specific lien by mortgage, or otherwise, upon the undivided share or interest of any of the parties, in that portion of the premises which it is necessary to sell, and whether the undivided share or interest of any of the parties, in the premises adjudged necessary to be sold, is subject to a general lien or incumbrance, by judgment or otherwise, and also ascertain and report the amount clue to any party to the said suit who has either a general or specific lien on the premises to be sold or any part thereof; and it was further ordered, in case a sale should be found necessary, that it be ascertained and a report made of the amount due to any creditors not a party who has a lien, whether general or specific, on any undivided share or interest thereon, and who shall appear and establish his claim on such reference. I, the subscriber, referee aforesaid, do report: First. Before proceedings had I took the oath prescribed by law, which is hereto annexed. Second. Having been attended by the attorneys for the several parties who appeared in the cause, I proceeded to a hearing of the matters so referred. Third. On such hearing I took proof of the several matters set forth in the complaint herein and find that the material facts alleged in the complaint are true. Fourth. The following is an abstract of the conveyances and instru- ments by which the premises described in said complaint are held. (Here insert abstract.) ipO PARTITION. Art. lo. Reference as to Title and as to Creditors. Fifth. The rights and interests of the parties in the premises are as follows: Nathan R. Nickerson, the plaintiff, as grantee of George VV. Nick- erson, is entitled to one undivided one-half part thereof. The defendant Emma Stevens, the wife of Nelson Stevens, as grantee of Peter T. Stevens, is entitled to an undivided one-half part thereof. Sixth. In my opinion the premises described in said complaint are so circumstanced that a partition thereof can be had without preju- dice to the owners thereof, and that a partition of said premi- ses would be more advantageous to such owners than a sale thereof. (State specifically reasons therefor.) All of which is respectfully submitted. Dated July 24, 1887. C. A. VAN WAGONER, Referee. Sub. 2. Reference as to Creditors. §§ 1561, 1562. § 1561. Reference to inquire as to creditors. Before an interlocutory judgment for the sale of real property is rendered, in an action for partition, the court must, either with or without application by a party, direct a reference, to ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party. But the court may direct or dispense with such a reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated ; and it appears therefrom, and by the affidavits, if any, produced therewith, that there is no such outstand- ing lien. § 1562. [Am'd, 1887.] Duty of referee. Where a reference is directed, as prescribed in the last section, the referee must cause a notice to be published, once in each week for six successive weeks, in such newspaper published in the county wherein the place of trial is desig- nated, as shall be designated by the court directing said reference, and also in a newspaper published in each county wherein the property is situated, requiring each person, not a party to the action, who, at the date of the order, had a lien upon any undivided share or interest in the property, to appear before the referee, at a specified place, and on or before a specified day, to prove his lien, and the true amount due or to become due to him by reason thereof. The referee must report to the court, with all convenient speed, the name of each creditor, whose lien is satisfactorily proved before him, the nature and extent of the lien, the date thereof, and the amount due or to become due thereupon. Under the former practice it was held not to be necessary that the referee in these proceedings advertise for liens; such notice is not necessary to be published unless by advice of the court, or it is required by some party to the suit. Noble v. Cromwell, 27 How. 289; Gardner v. Luke, 12 Wend. 269; Hall v. Partridge, 10 How. 188; Heckey v. Mitchell, 5 Abb. 451 : but see language of § 1562. Where the order of reference is granted, directing the referee to PARTITION. 191 Art. 10. Reference as to Title and as to Creditors. ascertain and report the amount due to any party to the action, who has any general or specific Hen on the premises, the referee is authorized to take proof and pass upon the vahdity of a mort- gage, upon an undivided share in the premises, although that issue is not raised by the pleadings. Halstcd v. Halstcd, 55 N. Y. 442. If notice is given to general lienors, they are bound by the decision ; and if they wish to press their claim on the proceeds of sale, must except to the report. DiDihani v. Minard, 4 Paige, 441. Where the interest of a defendant is sold under a judgment, subsequent to the commencement of the action, the purchaser must come in before the referee and prove his claim, or his inter- est will be divested by a sale. Spring v. Sanford, 7 Paige, 550. An heir who incurs expense at the request of the others, for the protection of the estate, does not acquire a lien. Bulcn v. Bcrdcll, II Abb. 381. But the rents received by a co-tenant are a lien upon his share in favor of those entitled thereto. Scott v. Guernsey, 48 N. Y. 106. A mortgage executed by one tenant in common, pending suit, becomes a lien subject to the effect of the /is pendens. Westervclt v. Haff, 2 Sandf. Ch. 98 ; CJmrck v. Chureh, 3 Sandf. Ch. 434. Where, under judgment in partition, the referee is directed to pay, out of the proceeds, all taxes, assessments, etc., which were liens upon the premises, he is bound, before distribu- ting the fund, to pay off all such liens to his knowledge. His duty in this respect is not modified or affected by a provision in the terms of sale, to the effect that he will allow all liens, pro- vided that the purchaser, previous to the conveyance, produce proof thereof, with vouchers showing payment. It seems effect will be given to general usage, permitting the referee to await the production, by the purchaser, of the proof of liens, by excusing the referee from making examination to discover liens ; but if he is aware of the existence of the lien, he is liable to the purchaser. Wiseman v. Wingrove, 85 N. Y. 353. See § 1545 for other decis- ions with regard to powers and duties of referee. It is much the simpler and easier practice to make all lienors parties and produce a certified search showing that fact so as to dispense with the delay and expense consequent upon publication. In case it does not appear on the application for interlocutory judgment that no such liens exist, an order of reference will be made, reciting that fact as the basis for the order, and the referee must then advertise. 192 PARTITION. Art. 10. Reference as to Title and as to Creditors. Publication under section 1562 is only constructive notice, and to give it effect as such, it must be in strict compliance with the statutes. Such notice cannot be given after the judgment has been rendered. O' Grady v. O' Grady, 55 Hun, 40. Where the property is situated in only one county, publication is not required in two newspapers. Connor v. Connor, 36 St. Rep. 823. Precedent for Order of Reference to Inquire as to Creditors. At a Special Term held in and for the Third Judicial District at the court house in the citv of Kingston, on the first day of Decem- ber, 1887. Present. — Hon. Alton B. Parker, yustice. FREDERICK B. HOPPER agst. GEORGE M. BASTEN, etc., MARIA C, HIS WIFE, SAMUEL M. BASTEN and Wife, and Others. An application having been made herein by the plaintiff, for an interlocutory judgment for the sale of the real property described in the complaint in partition, and it appearing from the papers pre- sented upon such hearing and from the affidavit of V. B. Van Wag- onen, Esq., attorney for the plaintiff, that no search certified as required by § 1561, is presented, and there being no affidavits show- ing that there is no outstanding lien. Now, On motion of V. E. Van Wagonen, attorney for plaintiff, and pursuant to provisions of § 1561, Alvah S. Newcomb, Esq., of Kingston, attorney and counsellor at law, is appointed a referee to ascertain whether there is any creditor not a party to this action who has a lien on the undivided share or interest of any party thereto, and such referee is directed to proceed according to the law and practice in such case made and provided, and report to the court with all convenient speed the name of each creditor whose lien is satisfactorily proved before him, the nature and extent of the lien, the date thereof and the amount due or to become due there- upon. ALTON B. PARKER, J. S. C. PARTITION. 193 Art. 10. Reference as to Title and as to Creditors. Precedent for Notice to Creditors to Present Claims. SUPREME COURT. FREDERICK B. HOPPER agst. GEORGE M. HASTEN, etc., MARIA C, HIS Wife, SAMUEL M. HASTEN and Wife, and Others. The undersigned, duly appointed referee in the above action, by an order of this court, made herein on the 9th day of December, 1887, hereby requires each and every person, not a party to this action, who, at the date hereof, has a lien upon any undivided share or interest in the property, hereinafter described, to appear before the undersigned, on or before the loth day of February, 1888, at his office in the surrogate's building, in the city of Kingston, county of Ulster, to prove their said liens and the true amount due or to become due by reason thereof; and to specify the nature of such incumbrance and the dates thereof respectively. The premises are described in the complaint in the above action as follows: First. All that certain farm of about twenty-eight acres with the build- ings thereon, situate in the town of Marbletown, said county, and bounded as follows: South, by the Coxing road; west, by lands of Henry Kirnel; north, by lands of James Gillespie and William Sheeley, and east, by lands of William Sheeley. Second. All that lot of improved land in said town of Marbletown, containing about thirteen acres, and bounded as follows: West, by said Coxing road; south and east, by lands of Benjamin Krom, and north by lands of Joseph Chichester. Third. All that wood lot in said town of Mar- bletown, containing about eleven acres, and bounded as follows: South, by lands of Mary E. Schoonmaker; east, by lands of Peter Snyder; north, by lands of James Gillespie, and west by lands of Dinah Bevier. Dated December 9, 1887. ALVAH S. NEWCOMB, Referee V. B. VAN WAGONEN, Attorney for plaintiff. L. B. VAN GAASBEEK, Attorney for some of the defendants. JOHN J. LINSON, Attorney for some of the defendants. [Special Actions — 13.] 194 PARTITION. Art. II. Interlocutory Judgment. ARTICLE XI. Interlocutory Judgment. §§ 1546, 1563, 1572, 1573, 1574, 1575- Sub. I. Judgment for sale or for actual partition. § 1546. 2. Special provisions IN JUDGMENT. §§ 1563, 1572, 1573, 1574, 1575. Sub. I. Judgment for Sale or for Actual Partition. § 1546. § 1546. Interlocutory judgment. The interlocutory judgment must declare what is the right, share, or interest of each party in the property, as far as the same has been ascertained, and must determine the rights of the parties therein. Where it is found, by the verdict, report, or decision, or where it appears to the court, upon an application for judgment in favor of the plaintiff, that the property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the owners, the interlocutory judgment, except as otherwise expressly pre- scribed in this article, must direct that the property, or the part thereof which is so circumstanced, be sold at public auction. Otherwise, an interlocutory judg- ment in favor of the plaintiff, must direct that partition be made between the parties, according to their respective rights, shares, and interests. A judgment in partition, which directs a reference for sale, inquiry for computation and for accounting, and provides for dis- tribution, is interlocutory and not final. Mingay v. Lackey, 142 N. Y. 449, 60 St. Rep. 98, afifirming 74 Hun, 89; 57 St. Rep. 270, 26 Supp. 161. The judgment must set forth the estate of each known owner, or of the defendants, or some of them collectively, when their rights between each other are disputed. Phelps v. Gree?t, 3 Johns. Cas. 302. It may state that certain definite parts belong to own- ers who are unknown. Hyatt v. Pugsley, 23 Barb. 285. In decid- ing whether a sale is necessary in a partition suit, the true question for the consideration of the master is, whether the aggregate value of the several parcels into which the whole premises must be divided will, when distributed among the different parties in severalty, be materially less than the value of the same property if owned by one person. Clason v. Clason, 6 Paige, 541. The rule that the practicability of making an actual partition is to be determined from the facts and circumstances, applied, denying such partition and directing a sale of a farm held in undivided thirds where there was but one set of buildings, and the part owners had severally mortgaged their undivided shares. Odell v. Odell, 19 Week. Dig. 13. The words " great prejudice," as used PARTITION. 195 Art. II. Interlocutory Judgment. in the statutes in reference to partition, will not justify a decree of sale of property held in common, where the aggregate amount of benefits from a sale to the parties, instead of actual partition of the premises, will be small in reference to the value of the prop- erty with reference to which a partition is sought. Smith v. Smith, 10 Paige, 470. The court determines the necessity for the sale upon the report of the referee. Austin v. Ahearne, 61 N. Y. 6. A sale of the premises should not be ordered where infants or a trustee without power to purchase are parties entitled, unless it appears that actual partition, with or without compensation, can- not be made. Where there are several parcels, impossibility of dividing one of them is not a reason for a sale. Walker v. Walker, 3 Abb. N. C. 12. The couit entered an interlocutory judgment, stating certain facts and conclusions of law, and ordering a refer- ence as to interests, and to take an account of the rents received by a defendant, reserving all questions of costs till the coming in of the report. A report was made, after which leave was given to file a supplemental answer, and a new reference was held, on the coming in of which report a trial was had and judgment was entered without findings. Held, the findings first made were suf^- cient. Offinger v. DcWolf, 43 Super. Ct. 144. There may be an actual partition between all the parties plaintiff on one side and all the parties defendant on the other. Walker v. Walker, 3 Abb. N. C. 12. The court is not restricted to a partition of all the lands, or to a sale of the whole ; and, therefore, where the interests of the parties require it, part of the lands held in common may be divided and part may be sold. See section 1547. Haywood v. Jud- son, 4 Barb. 228 ; Van Orman v. Phelps, 9 Barb. 500. Where the proceedings are instituted in behalf of infants, neither partition nor sale will be ordered unless the interests of the infants require it. Lansing V. Gulick, 26 How. 250. It is a matter of discretion whether to decree a sale or an actual partition ; and, unless clearly erroneous, such decision will not be reviewed on appeal. Scott V. Guernsey, 48 N. Y. 106. The court will adjust equities between the parties arising out of the expenditure of money by one of them for the benefit of the property ; an account will be directed and compensation made, or the person will be assigned that part of the property on which the improvements have been made. Town V. Needham, 3 Paige, 545 ; Prentice v. Janssen, 79 N. Y. 478; Green V. Putnam, i Barb. 500; Conklin v. Conklin, 3 Sandf. 196 PARTITION. Art. II. Interlocutory Judgment. Ch. 64; Haywood \. Judson, 4 Barb. 228; Teat v. Woodworth 3 Paige, 470; Matter of Heller, 3 Paige, 199. In an action of partition, where one of the parties is the undis- puted owner of two-thirds of the property to be divided, while the remaining third is in dispute among other parties, the court in the interlocutory judgment will order the sale of the property in one parcel, and give directions that one-third of the proceeds shall be brought into court to await the result of the controversy over its ownership, although, if there had been no such controversy, the property would have been actually partitioned. Fleming v. BurnJiam, 18 Week. Dig. 559. The rules governing partition are the same whether there is a sale or an actual partition. War- field \. Crane, 4 Abb. Ct. of App. Dec. 525. There is but one case in which the court has power in an action for partition to order a sale, and that is where partition cannot be made without great prejudice to the owners. Otherwise actual partitio must be made. Stephenson v. Cotter, 23 St. Rep. 74. But it is held in Brooks v. Davey, 109 N. Y. 495, that it is within the discretion of the court to direct a sale of the premises; and where a sale is ordered pursuant to this section, the title of the purchaser is to be deemed good, not only against the parties to this action, and their representatives, but against any one claiming through or under such party. And it is held that a direction for a sale in an action brought by a remainderman not in possession, although forbidden by § 1533, is not void for want of jurisdiction. Prior v. Prior, 15 Civ. Pro. R. 436; S. C. 18 St. Rep. 566, 2 N. Y. Supp. 523, 49 Hun, 502. And whether a sale shall be ordered before any attempt at actual partition has been made, is a question to be determined from the facts and circumstances of the case. C dell v. O'dell, 19 Weed. Dig. 13. A judgment of sale will not be interfered with where the value of the property consists in its adaptability for purposes of busi- ness and is more valuable to sell as a whole than to divide and sell a portion for equality of partition. David v. David, 9 N. Y. Supp. 256; S. C. 31 St. Rep. 116. Where the defendant in partition claimed the right to a convey- ance under a parol executory contract of sale, on which part of the consideration has been paid, the court may decree their right to such conveyance ; and on the failure of their compliance with PARTITION. 197 Art. II. Interlocutory Judgment. the terms, decree partition as prayed in the complaint. Grant v. Keator, 117 N. Y. 369. An actual partition was sustained between devisee of an undi- vided one-half of property and the life tenant and remainderman of the other half, although the will directed the latter half to be kept intact during the life tenancy, when the remaindermen all consented. Knevals v. Henry, 10 N. Y. Supp. 676; S. C. 32 St. Rep. 964. Precedent for Interlocutory Judgment of Sale. At a Special Term of the Supreme Court of the State of New York, held at the City Hall in the City of Albany, on the 29th day of March, 1892. Present — Hon. Samuel EcTwards, Justice. SUPREME COURT — Albany County. JOHN W. McHARG and HARRIETTE D. McHARG, HIS Wife, Plaintiffs, agsf. RUFUS K. McHARG and HARRIET S. McHARG. his Wife, and Others, De- fendants. On reading and filing the report of William Bayard Van Rensse- laer, the referee appointed in the above-entitled action by an order of this court made and entered on the 29th day of December, 1891; and on reading and filing proof of due service of notice of this motion upon Hon. Simon W. Rosendale, Attorney-General, attorney for the defendant the People of the State of New York; Frank W. Stevens, Esq., attorney for Robert N. Marvin and Elizabeth Marvin and for Robert N. Marvin, guardian ad litem for Isabella Marvin and Maud Marvin; John J. Kinney, Esq., attorney for Evelyn N. Post and Daniel H. Post, her husband, and for John J. Kinney and Frederick A. Bentley, as executors under the last will and testament of Robert Newland, deceased; and James Fenimore Cooper, Esq., guardian ad litein for Katharine F. Clarke; and after due delibera- tion having been had. Now, on motion of Marcus T. Hun, Esq., attorney for the plaintiffs, it is Ordered, adjudged and decreed that the respective rights, shares and interests of the parties to this suit in the property mentioned and described in the amended complaint herein are, as follows, to-wit: That the plaintiff John W. McHarg is seized of and entitled in fee simple absolute to two undivided twenty-thirds thereof, subject to the inchoate right of dower therein of his wife, the plaintiff, Har- iqS partition. Art. II. Interlocutory Judgment. riette D. McHarg. That the said John W. McHarg is forty-eight years of age, and that the said Harriette D. McHarg is forty years of age. (Recite other like interests in the same manner.) That the defendant Richard P. Marvin, Jr., is seized of and entitled in fee simple absolute to one undivided twenty-third thereof; and that the said Richard P. Marvin, Jr., is unmarried. That the defendant John M. Wood, is seized of and entitled in fee simple absolute to one undivided twenty-third thereof; and that the said John M. Wood is unmarried. That the defendant Sophia K. Porter is seized of and entitled in fee simple absolute to one undivided twenty-third thereof; and that the said Sophia K. Porter is married to the defendant Horace Porter. (Recite other like interests in same manner.) That the defendant Katharine F. Clarke is seized of and entitled in fee simple absolute to one undivided twenty-third thereof; and that the said Katharine F. Clarke is a minor under the age of twenty-one years and is unmarried. (Recite interests of other like defendants who are minors in the same manner.) That the defendant Mary E. Goodrich is seized of and entitled in fee simple absolute to one undivided twenty-third thereof; and that the said Mary E. Goodrich is a widow. That the defendant Evelyn N. Post is seized of and entitled in fee simple absolute to one undivided twenty-third thereof, subject, however, to the payment of the debts of her father, Robert Newland, deceased; and that the proceeds of any sale of said real estate should be paid into the Surrogate's Court to be there distributed by the executors of the said Robert Newland, who are parties to this suit. That the said Evelyn N. Post is married to the defendant Daniel H. Post. That the defendant William Donaldson, a party defendant in this action, was born a citizen of the United States and never renounced his allegiance to said country, and that the defendant, the People of the State of New York have not nor have they ever had any right, title or interest of, in and to the premises hereinafter described. And it having been found by said report that the said property is so circumstanced that a partition thereof cannot be made without great prejudice to the owners, it is Ordered, adjudged and decreed that the said property mentioned and described in the amended complaint herein, to-wit: (Insert description.) Together with the common right of drainage and water, as the same are now enjoyed by said premises. And all the estate, right, title and interest of the parties to the suit therein, whether present or future, vested or contingent, of dower, curtesy or otherwise, and the rights to which any other per- son might hereafter become entitled in said premises, be sold at public auction in the county of Albany where said premises are situ- ated, by or under the direction of William Bayard Van Rensselaer, Esq., who is hereby appointed referee for the purpose of making such sale. That the said referee give notice of such sale according to the PARTITION. 199 Art. II. Interlocutory Judgment. course and practice of this court. That said sale be made for cash, and that the plaintiffs or any of the parties to this action may become a purchaser or purchasers thereof. It is further ordered, adjudged and decreed that the said referee, immediately after completing such sale, file with the clerk of this court his report thereof under oath, containing a description of the property sold, the name of the purchaser thereof, and the price at which it was sold. A. C. REQUA, Clerk. Precedent for interlocutory judgment for actual partition and appointment of commissioners will be found under Article XVI, Sub. 2, § 1549, etc. Sub, 2. Special Provisions in Judgment. • §§ 1563, 1572-1575. ^ 1563. Money to be paid into court. If it appears by the pleadings, or by the evidence in the action, or by the re- port, that there was, at the date of the order, any existing lien upon the share or interest of a party in the property, the interlocutory judgment, directing the sale, must also direct the officer making it to pay into court the portion of the money, arising from the sale of the share or interest of that party, after deduct- ing the portion of the costs and expenses for which it is liable. t^ 1572. Unknown owners. If a person, entitled to an estate or interest in the property sold, is made a party as an unknown defendant, the court must provide for the protection of his rights, as far as may be, as if ha was known and had appeared. § 1573. Sale; terms of credit thereupon. The court must, in the interlocutory judgment for a sale, direct the terms of credit which may be allowed for any portion of the purchase-money, of which it thinks proper to direct the investment, and for any portion of the purchase- money, which is required to be invested for the benefit of a person, as prescribed in this article. § 1574. Credit; how secured. The portion of the purchase-money, for which credit is so allowed, must always ue secured at interest, by a mortgage upon the property sold, with a bond of the purchaser; and by such additional security, if any, as the court prescribes. § 1575. Separate securities. The officer making the sale may take separate mortgages and other securities in the name of the county treasurer of the county in which the property is situated, for such convenient portions of the purchase-money, as are directed by the court to be invested; and in the name of the owner, for the share of any known owner of full age, who desires to have it invested. 1 200 PARTITION. Art. II. Interlocutory Judgment. I Precedent for Interlocutory Judgment, with Special Provisions. At a Special Term of the Supreme Court of the State of New York, held at the county court house at White Plains, in the county of Westchester, State of New York, on the 8th day of April, 1893. Present — Hon. J. O. Dykman, Justice. ELWOOD B. MINGAY, Plaintiff agst. LILY MINGAY, wife of said ELWOOD B. L 1^2 N. Y. 453. MINGAY; JAMES B. MINGAY, MARY ESTELLE LACKEY and EDWIN D. LACKEY, HER Husband, Defendants. This aciton having been brought on for trial upon the summons and complaint herein and the answers of the defendants Mary Estelle Lackey and Edwin D. Lackey, and upon due proof of the service of said summons and complaint upon the defendants Lily Mingay and James B. Mingay, personally, within the State of New York, and due proof that said defendants Lily Mingay and James B. Mingay have not served any answer or demurrer to the complaint herein, and that their time to answer or demur has expired, and that they have not appeared herein, and upon the verdict of the jury herein upon the issues raised by the complaint, and the answer of the defendant Mary Estelle Lackey in favor of the plaintiff, Elwood B. Mingay, and against the said defendant Mary Estelle Lackey, rendered at a Surrogate Court for Westchester county, held at the court house in the town of White Plains, on the 17th day of March, 1893, and findings of fact and conclusions of law having been signed and filed, after hearing Sidney H. Stuart, attorney for plaintiff, on behalf of said plaintiff, and Messrs. Feitner &: Beck, attorneys for the defendants Mary Estelle Lackey and Edwin D. Lackey, on behalf of said defendants. Now, on motion of Sidney H. Stuart, attorney for the plaintiff, Elwood B. Mingay, it is adjudged and decreed that the rights, titles and interests of the parties to this action in and to the premi- ses mentioned in the complaint and described as follows, to wit: (insert description), are as follows: The plaintiff Elwood B. Mingay, and the defendant Mary Estelle Lackey are entitled to and hold, as tenants in common, each the one undivided half part of the above described premises, subject, how- ever, to the tenancy by the curtesy of the defendant James B. Min- gay in the whole of said premises, which tenancy by the curtesy and all his right, title and interest therein and in and to said premises the said defendant James B. Mingay duly assigned and conveyed before the commencement of this action to the plaintiff, Elwood B. Mingay, who is the owner thereof and entitled to the same. PARTITION. 20 [ Art. II. Interlocutory Judgment. The defendant Lily Mingay has an inchoate right of dower in the share or portion of her husband, the plaintiff, Elwood B. Mingay, and all of said premises. And it appearing, by the testimony herein, that an actual parti- tion of said premises mentioned in the complaint and hereinbefore described, cannot be had without great prejudice to the owners thereof, and that a sale of the whole of said first described premises situate in the town of Cortland and county of Westchester, as one parcel of land, and of the whole of said second above described premises situate in the city and county of New York, as one parcel of land, and the sale of the whole of said above described premises situate in the city of Brooklyn and county of Kings, as one parcel of land, is necessary to the interest of all parties, it is further adjudged and decreed, that all and singular the premises mentioned in the complaint, and hereinbefore particularly described, together with all and singular the hereditaments and appurtenances thereto belonging or in any wise appertaining, be sold, the first above-de- scribed premises situate in the town of Cortland and county of West- chester, as one parcel of land, the second above-described premises situate in the city and county of New York, as one parcel of land, and the third above-described premises situate in the city of Brook- lyn and county of Kings, as one parcel of land, at the New York Real Estate Sales Rooms, No. iii Broadway, in the city of New York, by and under the direction of James H. Moran, Esq., coun- sellor-at-law, who is hereby appointed referee for that purpose; that the said referee give notice of the time and place of said sale by pub- lishing same and in such other manner as is required by law, and the rules and practice of this court, and that any of the parties to this action may become the purchaser or purchasers, at such sales, and that such sales be for cash, and that said third above-described premises situate in the city of Brooklyn, county of Kings, be sold subject to the mortgage for $370, now on said premises, and the accrued interest. And it is further adjudged and decreed that the said referee, out of the proceeds of said sale, shall retain his fees and disbursements to which he is entitled on the sale to be made herein, and pay all deductions and assessments which may be a lien upon said premises at the time of said sale; that he next pay to the plaintiff or to Sidney H. Stuart, his attorney, the amount of his costs and disbursements to be taxed by the clerk of this court, and also the sum to be fixed on the sale of the premises as and for an additional allowance, and that he next pay to the defendant Mary Estelle Lackey or to Messrs. Feitner & Beck, her attorneys, the amount of her said costs and dis- bursements to be taxed by said clerk, and the amount to be fixed upon the sale of the property as her additional allowance. And it appearing to the court that the defendant James B. Mingay has a tenancy by the curtesy in the whole of said premises which he has assigned and conveyed to the plaintiff Elwood B. Mingay, it is further adjudged and decreed that the tenancy by the curtesy be included in said sale, and the purchasers of said premises, their heirs and assigns, shall hold the said property free and discharged of any 202 PARTITION. Art. II. Interlocutory Judgment. claim by virtue thereof, and that the said referee shall next pay over to the said plaintiff Elwood B. Mingay a gross sum in satisfaction of the said tenancy by the curtesy to be fixed by the said referee according to the principles of law applicable to annuities. And it appearing to the court that the defendant Lily Mingay, wife of the plaintiff Elwood B. Mingay, has an inchoate right of dower in the share of her husband, said Elwood B. Mingay, in the whole of said premises, it is further adjudged and decreed, that the said right of dower be included in the said sale, and the purchasers of the said premises, their heirs and assigns, shall hold the said property free and discharged of any claim by virtue of the said right, and the said defendant Lily Mingay is entitled to receive from the share or proportion of her said husband in the proceeds of sale, at her election, to be signified by request and consent there- for, and delivering a certified copy to said referee before the report of a sale, a gross sum in satisfaction of the said right of dower to be fixed by the said referee, according to the principles of law appli- cable to annuities or in default of an election being so signified by her to have one-third of the share or proportion of her said husband in the proceeds of sale paid into court, according to law and the rules and practice of the court for the purpose of being invested for her benefit according to law. And it is further adjudged and decreed, that said referee pay to the plaintiff or to Sidney H. Stuart, his attorney, out of the proceeds of sale, the costs and disbursements of the said jury trial of the issues raised ty the complaint and the answer of the said defendant Mary Estelle Lackey, said costs and disbursements to be taxed by the clerk of this court. And it is further adjudged and decreed, that the said referee pay over to the plaintiff Elwood B. Mingay and the defendant Mary Estelle Lackey, respectively, the share of the proceeds of sale as hereinbefore adjudged and decreed, deducting from each of them the portion of the costs, allowances and expenses for which it is herein adjudged to be liable, and the tenancy by the curtesy of the defendant James B. Mingay as herein adjudged, and from the share of the plaintiff Elwood B. Mingay, the dower right of the defendant Lily Mingay. And it is further adjudged and decreed, that the said referee take receipts for all payments to be made by him as aforesaid, and file them with his report to be made of his proceeds, subsequent to the confirmation of his report of sale. And it is further adjudged and decreed that the plaintiff Elwood B. Mingay and the defendant Mary Estelle Lackey make, execute and deliver to the purchaser or purchasers, on the sale of said premi- ses, if thereunto requested, conveyances of all their right, title and interest in and to the said premises upon full compliance by said purchaser or purchasers, with the terms and conditions of said sale. And it is further adjudged and decreed, that the purchaser or purchasers, of the said premises, be let into possession thereof and that any of the parties to this action who may be in possession of said premises or any part thereof, and any said person who since PARTITION. 203 Art. II. Interlocutory Judgment. the commencement of this action has come into possession thereof, deliver possession thereof to such purchaser or purchasers, on the production of the referee's deed of said premises. And it appearing to the court that the defendant Mary Estelle Lackey has collected and received the rents of said premises since the death of said Mary Louise Mingay, it is further adjudged and decreed that an accounting be had of the said rents and profits of the said premises, and that the said referee who is hereby appointed referee for that purpose, take and state an account of the rents and profits of said premises collected and received by the said defendant Mary Estelle Lackey, since the death of the said Mary Louise Mingay, and that any amount found due to any of the parties to this action be paid by said referee out of the share of the defendant Mary Estelle Lackey in the proceeds of sale herein, and that judg- ment be rendered against her herein for any deficiency. And it is further adjudged and decreed, that the said referee make a report of his proceedings under this judgment subsequent to the confirmation of his report of sale to be made as hereinbefore directed. And it is further adjudged and decreed that the verdict of the jury rendered herein at a circuit court held at the town of White Plains, Westchester County, on the 17th day of March, 1893, upon the issues raised by the complaint and the answer of the defendant Mary Estelle Lackey in favor of the plaintiff Elwood B. Mingay and against the defendant Mary Estelle Lackey, be and the same hereby is, in all things confirmed, with costs to the said plaintiff against said defendant, as hereinbefore provided. And it is further ordered and adjudged that the complaint herein be dismissed as to the defendant Edwin D. Lackey without costs, and the parties to this action may at any time hereafter make ap- plication to the court at the foot of this judgment for such further order or direction in the premises as may be found necessary. J. O. DYKMAN, J. S. C. 204 PARTITION. Art. II. Interlocutory Judgment. Precedent for Interlocutory Judgment with Special Pro- visions. At a Special Term of the Supreme Court of the State of New York, held at the court house in the City and County of New York on the 23rd day of June, 1893. Present — Hon. Charles H. Truax, Justice. Michael Bowen, Plaintiff, agst. Michael Sweeney, Catherine Gallagher and Francis Gallagher, her husband; Joseph Sweeney and Mary Sweeney, his wife; Patrick Sweeney and Ann Sweeney, his wife; Mary O'Donnell, widow; Barney Sweeney and Helen Sweeney, his wife (the plaintiff being ignorant of the names of the said wives, they are designated by fictitious names), the said Michael, Catherine, Joseph, Pat- rick, Mary and Barney being children of Ann Sweeney, deceased, sister of the testator, John Bowen, deceased; Eliza Sweeney, Robert Sweeney and Eleanor Sweeney, the widow, children and heirs-at-law of John Sweeney deceased, a son of said Ann Sweeney deceased, (the plaintiff being ignorant of the names of the said widow, children !^ and heirs-at-law, they are designated by fictitious names), et al. Defendants. . 143 N. Y. 349. The issues of fact joined in this action having been duly tried by a jury pursuant to sections 1544 and 970 of the Code of Civil Proced- ure, and a verdict having been duly rendered and entered as men- tioned and set forth in the findings of fact hereinafter referred to, and the further trial and hearing of this action upon the pleadings, proceedings, evidence and proofs, and upon the said verdict having been duly had, and the arguments of counsel for the respective parties having been duly considered, and the findings of fact and conclusions of law and the decision of the court having been duly made and filed, and due notice of the settlement of this judgment having been duly given, and the court having heard Flamen B. Candler, Esq., attorney for the plaintiff Michael Bowen, and Francis C. Devhn, Esq., attorney for the defendant Michael Sweeney; Messrs. Arnoux, Ritch and Woodford, attorneys for the defendant Catherine Gallagher; Bernard Zwinge, Esq., attorney for the de- fendant Francis Gallagher; William J. Kelly, Esq., attorney for the defendants Bridget McNulty and David McNulty, her husband; and all the other defendants having been duly served with the sum- mons in this action and having made a default, and due notice of PARTITION. 20: Art. II. Interlocutory Judgment. the pendency of this action having been duly filed and the proofs of the regularity of the proceeding herein having been made and filed, It is ordered, adjudged and decreed, and this court by virtue of the power and authority in it vested doth order, adjudge and decree: First. That John Bowen, at the time of the execution of his last will and testament, mentioned and described in the second amended complaint in this action, and at the time of his death, was seized in fee simple and was in possession of those certain lots, pieces or parcels of ground situate, lying and being in the seventeenth ward of the City of New York and known as lots numbered three hundred and forty-four (344) and three hundred and forty- five (345) on map of lands in the City of New York, lying and being between Tenth and Twentieth streets and between Second avenue and East River, devised by Peter Gerard Stuyvesant, deceased, to Julia Stuyvesant and others, and together bounded and described as follows: (Insert description.) and that being so seized and possessed of the said property, said John Bowen died on or about the 14th day of March, 1863. Second. That the said John Bowen, in his lifetime and on or about the 12th day of June, 1862, duly made, executed, published and declared his last will and testament, a copy of which said in- strument is set forth in full in the second amended complaint in this action. Third. That the said will of the said John Bowen was duly proved before the Surrogate of the County of New York, to whom jurisdic- tion in that behalf belonged as a will of real and personal property, and the said surrogate duly admitted the said will to probate and duly issued letters testamentary thereon, to his executors therein named, who duly qualified as such, namely, to the defendant John A. McLaughlin on the 9th day of April, 1863, on which day the said will and the decree admitting the same to probate was duly recorded in the office of the said surrogate and to the plaintiff on the 26th day of February, 1886. Fourth. That the said John Bowen left him surviving his only children and heirs-at-law, his daughter Mary Teresa Bowen, and his two sons Francis J. Bowen and Thomas F. Bowen. Fifth. That after the death of the said John Bowen, and on or about the first day of November, 1863, his said son Francis J. Bowen died in the City and County of New York where he then resided, unmarried, intestate and without issue. Sixth. That the said Thomas F. Bowen, the other son of the said testator John Bowen, deceased, died in the City of New York, where he then resided, about the month of April, 1868, intestate and with- out issue, but leaving a widow who is since deceased. Seventh. That the said Mary Teresa Bowen, daughter of said John Bowen deceased, intermarried with one James Hatten, and she survived him, and after his death and on or about the 27th day of August, 1885, the said Mary Teresa Hatten died in the City of New York, a widow and without issue. Eighth. That the said daughter of the said testator, John Bowen, 2o6 PARTITION. Art. II. Interlocutory Judgment. by her married name of Mary Teresa Hatten, on or about the 17th day of April, 1880, signed a certain paper writing, which purported to be her last will and testament, in and by which she purported to will, devise and bequeath all her property and estate of every kind and description, both real and personal, of which she might die seized or possessed to the defendants Michael Sweeney and Cathe- rine Gallagher, to be divided equally between them, share and share alike, to have and to hold the same to them and their heirs forever, and in and by which said paper writing she purported to nominate, constitute and appoint the said defendant Michael Sweeney to be the executor of her last will and testament. Ninth. That at or immediately after the time when the said Mary Teresa Hatten signed the paper writing dated the 17th day of April, 1880, which said paper writing on the trial of this action has been marked exhibit A, and purporting to be her last will and testament and mentioned in the second amended complaint herein, she pub- lished and declared the same to be her last will and testament. Tenth. That the said paper writing was obtained from the said Mary Teresa Hatten by undue influence exercised upon her by the defendant Michael Sweeney, Catherine Gallagher and Francis Gallagher, some or one of them. Eleventh. That the said paper writing was obtained from the said Mary Teresa Hatten by a conspiracy entered into by the defendants Michael Sweeney, Catherine Gallagher and some other person or persons for the purpose of fraudulently procuring a will in favor of the said Michael Sweeney and Catherine Gallagher in pursuance of which conspiracy they procured the said paper writing to be signed by the said Mary Teresa Hatten. Twelfth. That the said Mary Teresa Hatten at the time she executed the said paper writing was not of sound mind. Thirteenth. That the said paper writing executed by the said Mary Teresa Hatten is not her last will and testament. Fourteenth. That the apparent devise by the said Mary Teresa Hatten in and by the said paper writing which purports to be her last will and testament, is void. Fifteenth. That at the time of the death of the said testator John Bowen, on the 14th day of March, 1863, his only brothers and sis- ters then living and the only heirs of such of his brothers and sisters as were then dead, were the following named persons, that is to say, the plaintiff Michael Bowen of the City of New York, a brother of the said testator John Bowen, being deceased; Pat- rick Bowen of Ballinamore, County of Leitrim, Ireland, a brother of the said testator John Bowen, deceased; Ann Sweeney of said Ballinamore, a sister of the said testator John Bowen, deceased ; Bridget Ford of said Ballinamore, a sister of the testator John Bowen, deceased; Bridget Bowen of the said Ballinamore, a daugh- ter of the said Thom.as Bowen, deceased, w^ho was a brother of the testator John Bowen; Bridget McNulty of said Ballinamore, Mary Ann Cane and Catherine Ward now of New York City, children of Catherine Reynolds, deceased, who was a sister of the said testator John Bowen, deceased. PARTITION. 207 Art. II. Interlocutory Judgment. Sixteenth. That at the time of the death of the said Mary Teresa Hatten, the last surviving child of the said testator, John Bowen, his brothers and sisters then living and the descendants of such of them as were then dead, were the following persons: (Insert.) Seventeenth. That the said Ann Sweeney, the said deceased sister of the said testator John Bowen, never came into the United States, and she died in Ballinamore, County of Leitrim, Ireland, after the decease of the said Mary Teresa Hatten, and died in or about the month of November, 1883, leaving her surviving her children the defendants Michael Sweeney, Catherine Gallagher, Joseph Sweeney, Patrick Sweeney, Mary O'Donnell, Barney Sweeney, Francis Sweeney, Teresa McNulty and Thomas Sweeney, and her grand- children defendants Eliza Sweeney, Robert Sweeney and Eleanor Sweeney, children of her deceased son John Sweeney, and Hugh O'Donnell, sued as George O'Donnell, Emma O'Donnell, sued as Edward O'Donnell, Lizzie O'Donnell, sued as Harriet O'Donnell, Julia O'Donnell, sued as Patrick O'Donnell, and Mary O'Donnell, sued as Ellen O'Donnell, children of her deceased daughter Ann O'Donnell. Eighteenth. That the said Mary Teresa Hatten, the last surviving child of the said testator John Bowen, at the time of her death was a citizen of the United States and resided in the State of New York, and left her surviving no father or mother and no lineal descendants or any brother or sister or child or children or issue of a deceased brother or sister. Nineteenth. That the heirs of the said Mary Teresa Hatten are such of the same persons hereinabove mentioned in the sixteenth section of this judgment as at the time of her decease, were capable of taking real property situate in the State of New York, by descent, and they are the following named persons only, namely, Michael Bowen of the City of New York, the plaintiff, and the defendants Thomas Bowen and Michael Bowen of Woonsocket Falls, Rhode Island, and Fannie McQueeny, three of the children of Patrick Bowen, a deceased brother of the said testator John Bowen, Patrick Ford, Francis Ford, Michael Ford and Thomas Ford of Syracuse, N. Y., children of Bridget Ford, a deceased sister of the said testator John Bowen, and Mary Ann Cane and Catherine Ward of the City of New York, children of Catherine Reynolds, a deceased sister of the said testator John Bowen. Twentieth. That neither the said testator John Bowen nor the said Mary Teresa Hatten left any real estate in the State of New York other than that hereinabove mentioned and described. Twenty-first. That upon the death of the said Mary Teresa Hat- ten, intestate, and without issue, the said property described in the said second amended complaint, being the real property hereinabove particularly described, became vested in the following named per- sons, parties to this action, in the shares and proportions set oppo- site their names respectively, and they hold and own the same in such shares and proportions, the said persons being the heirs of the 2o8 PARTITION. Art. II. Interlocutory Judgment. said Mary Teresa Hatten, who were capable of taking real property situate in the State of New York, by descent at the time of her decease, namely: The plaintiff Michael Bowen, one-fourth. The defendant Thomas Bowen, son of Patrick Bowen, a deceased brother of the said testator John Bowen, one-twelfth. The defendant Michael Bowen, a son of the said Patrick Bowen, one-twelfth The defendant Fannie McQueeny, a daughter of the said Patrick Bowen, one-twelfth. The defendant Patrick Ford, a son of Bridget Ford, a deceased sister of the said testator John Bowen, one-sixteenth. The defendant Francis Ford, a son of the said Bridget Ford, one sixteenth. The defendant Michael Ford, a son of the said defendant Bridget Ford, one-sixteenth. The defendant Thomas Ford, a son of the said Bridget Ford, one- sixteenth. The defendant Mary Ann Cane, a daughter of Catherine Rey- nolds, a deceased sister of the said testator John Bowen, one-eighth. The defendant Catherine Ward, a daughter of the said Catherine Reynolds, one-eighth. Twenty-second. That the said share of the said plaintiff Michael Bowen is not subject to any lien or incumbrance whatsoever ex- cept to its proper proportionate part or share of such amount, if any, as the referee hereinafter appointed shall find due on the mortgage for twelve hundred dollars hereinafter mentioned and referred to. Twenty-third. That the said shares of the said defendants herein- above found to be seized of the said lands described in the said second amended complaint, together with the plaintiff, are subject respectively, to their proper proportional part or share of such amount, if any, as the said referee shall find due on said mortgage and are also subject respectively as follows: The share of the said defendant Thomas Bowen is subject to the inchoate right of dower of his wife, the defendant Bridget Bowen. The share of the said Michael Bowen is subject to the inchoate right of dower of his wife, the defendant Julia Bowen. The share of the said defendant Fannie McQueeny is subject to the tenancy by the curtesy initiate of her husband the defendant George McQueeny. The share of the said defendant Patrick Ford is subject to the in- choate right of dower of his wife, the defendant Mary Ford. The share of the said defendant Francis Ford is subject to the inchoate right of dower of his wife the defendant Ida Ford. The share of the said defendant Thomas Ford is subject to the inchoate right of dower of his wife Eliza Ford. The share of the said defendant Mary Ann Cane is subject to the tenancy by the curtesy initiate of her husband the defendant John Cane and the share of the said defend- ant Catherine Ward is subject to the tenancy by the curtesy initiate of her husband the defendant Henry Ward. PARTITION. 209 Art. II. Interlocutory Judgment. Twenty-fourth. That none of the other parties to this action have any right, title or interest, of, in or to the said premises or any part thereof. Twenty-fifth. That the said premises are not, nor is any part thereof, nor is any share or interest therein of any or either of the said above-named persons who have been hereinabove adjudged to be the owners of the said premises, subject to any general or specific lien or incumbrance, by mortgage, judgment, decree or otherwise, nor has any creditor not a party to this action a specific lien by mort- gage or otherwise on the undivided share or interest of any of the said persons above mentioned, with the exception only that each of the said shares or interests is subject to the payment of its proper proportion of such amount, if anything, as the referee hereinafter appointed shall find to be due upon the mortgage for twelve hundred dollars hereinafter particularly mentioned. Twenty-sixth. That the said premises are so circumstanced that an actual partition thereof cannot be made without great prejudice to the owners thereof, and that a sale thereof and of the whole of the said premises is necessary. Twenty-seventh. That neither the parties to this action nor such of them as are hereinbefore found to be the owners of said premises described in the said second amended complaint in this action, are the owners of, or interested in any other real property situate in the State of New York in which they alone are the owners. Twenty-eighth. That the said premises hereinabove described be sold at public auction in the City of New York, in the County of New York, where the premises are situated, by Charles W. Da3rton5, Esq., of the said city, a counsellor of this court, who is hereby ap- pointed a referee for that purpose. Twenty-ninth. That the said lots be sold separately as now built upon, for cash, or in such other manner as the said referee shrJI de- termine, and that such referee give public notice of the time r-nd place of such sale according to law and the rules and practice of this court. The said premises so to be sold are bounded and de- scribed as follows: (Insert description.) together with all and singular the tenements, hereditaments and ap- purtenances hereunto belonging. Thirtieth. That the rights of dower of the defendants Bridget Bowen, wife of Thomas Bowen ; Julia Bowen, wife of Michael Bowen; Mary Ford, wife of Patrick Ford; Ida Ford, wife of Francis Ford, and Eliza Ford, wife of Thomas Ford, be included in the said sale, and the purchasers, their heirs and assigns, shall hold the prop- erty free and discharged from any claim by virtue of said rights, and that the rights as tenants by the curtesy initiate of defendant George McQueeny, husband of Fannie McQueeny, and of the defend- ant John Cane, husband of Mary Ann Cane, and of the defendant Henry Ward, husband of Catherine Ward, be also included in the sale, and the purchasers, their heirs and assigns, shall hold the property free and discharged of any claim by virtue of such rights, [Special Actions — 14.] 210 PARTITION. Art. II. Interlocutory Judgment. and that the plaintiff or any party or parties to this action may upon such sale become the purchaser or purchasers of the premises sold or any part thereof. Thirty-first. That the said referee do forthwith, after such sale, make a report thereof to this court, and when his report of sale shall have been duly confirmed then that he execute to the pur- chaser or purchasers of the premises sold by him, a sufficient deed or deeds of conveyance in the law in the proper form for the same on his or their complying with the conditions upon which the deed or deeds was or were to be delivered; and that sale and conveyance or conveyances be valid and effectual forever, and that each party to this action is hereby required on demand of the purchaser or purchasers of said premises, or of any parcel thereof, to deliver to such purchaser or purchasers of all title, deeds or writings, under the control of such party, that relate wholly to the premises bought by such purchaser or purchasers or to any part thereof, and that the purchaser or purchasers of said premises or any part thereof, at such sale, be let into possession, and that each party or other person upon whom this judgment is binding who may be in possession of the premises purchased or of any part thereof, is hereby directed to deliver possession of the same to the purchaser or purchasers on production of the referee's deed. Thirty-second. That the said referee shall also ascertain and re- port whether the said defendants Bridget Bowen, wife of Thomas Bowen; Julia Bowen, wife of Michael Bowen; Mary Ford, wife of Patrick Ford ; Ida Ford, wife of Francis Ford, and Eliza Ford, wife of Thomas Ford, or either or any of them, will consent that the parts or shares of the net proceeds of sale belonging to their re- spective husbands be paid to such husbands, and such of whom will not so consent, but will consent to receive a sum in gross in lieu and satisfaction of her or their dower, and such of whom as will neither consent that payment be made to her or her or their hus- bands nor consent to receive a sum in gross; and that the said referee shall take from such of the said wives as will execute the same a consent in form and acknowledged or proved and certified in like manner as a deed to be recorded, and that her husband's share be paid over to him; and also take from each of such wives who will not consent to such payment, but who are willing to receive a sum in gross in lieu of dower, consent in form and acknowledged or proved and certified as hereinabove provided, to accept a sum in gross; and also that he ascertain and report which of the said wives \;ill neither consent to the whole or part of her share being paid to her husband or to receiving a sum in gross for her interest therein, and that such referee file such consents in the office of the clerk of this court at the time of filing his said report of sale. Thirty-third. That all other directions, including the proper adjudications and directions for the distribution of the proceeds to be realized from the sale of the said premises amongst the plaintiff Michael Bowen, and the defendants Thomas Bowen, Michael Bowen, Fannie McQueeny, Patrick Ford, Francis Ford, Michael Ford, Thomas Ford, Mary Ann Cane and Catherine Ward, the owners of PARTITION. 211 Art. II. Interlocutory Judgment. the said premises, as more particularly mentioned and set forth in the 2ist section of this judgment, and including also the granting of costs and an allowance to the plaintiff Michael Bowen, and to the defendants Thomas Bowen, a son of Patrick Bowen, a deceased brother of the said testator John Bowen; defendant Michael Bowen, a son of the said Patrick Bowen, deceased; the defendant Fannie McQueeny, a daughter of the said Patrick Bowen, deceased; the defendant Patrick Ford, a son of Bridget Ford, a deceased sister of the said testator John Bowen; the defendant Francis Ford, a son of the said Bridget Ford; the defendant Michael Ford, a son of the said Bridget Ford; the defendant Thomas Ford, a son of the said Bridget Ford; the defendant Mary Ann Cane, a daughter of Cathe- rine Reynolds, the said sister of the said testator John Bowen, and the defendant Catherine Ward, a daughter of the said Catherine Reynolds, be and are hereby reserved until the coming in of said referee's report of sale, and that any party in interest shall be at liberty to apply to this court for further directions or instructions at the foot of this decree whenever it may become necessary. Thirty-fourth. And it appearing to the court from the official searches and the affidavits hereto annexed which have been submit- ted to the court, that on or about January 12th, 1874, the said Mary Teresa Hatten executed a mortgage on the whole of the said premi- ses to one Catherine Cummins, to secure the payment of twelve hundred dollars and interest, which mortgage was dated on the said i2th day of January, 1874, and was on that date recorded in the office of the register of the City and County of New York in Liber I, 137 of mortgages, page 349, and that subsequently and on or about February 8th, 1875, the said Catherine Cummins assigned the said mortgage to Francis Heggan and Alice Kelly, by an assignment dated and recorded on that day in the said register's office in Liber 1209 of mortgages, page 349, and that the said Francis Heggan and Alice Kelly subsequently assigned the said mortgage to the de- fendant Michael Sweeney by an assignment dated July 2nd, 1878, and recorded in the said register's office December i6th, 1880, in Liber 1339 of mortgages, page 34, and that the said mortgage still remains of record against the said property and that the plaintiff claims that the said mortgage has been extinguished and paid and is no longer a lien upon the said premises, and also claims that the said defendant Michael Sweeney, since the death of the said Mary Teresa Hatten, and also since the commencement of this action, has received divers large sums as and for the rents of the said premises for which he has not accounted and for which he is accountable in this action, and that in case the said mortgage was not paid before the decease of the said Mary Teresa Hatten, then that the said rents so received by the said defendant Michael Sweeney so far as shall be necessary, should be applied toward the payment and extinguishment of the said mortgage, and that the said mortgage should be adjudged to have been paid and extinguished, and it is Further ordered, adjudged and decreed, and this court by virtue of the power and authority in it vested, doth order, adjudge and 212 PARTITION. Art. 12. Dower Interest and How Affected by Sale. decree that the said premises be sold by the said referee as herein- above directed, free and clear of and from the lien of the said mortgage, and that the said referee shall ascertain and report in and by his said report as hereinabove directed to be made, what amount, if any, remains due and unpaid upon the said mortgage, and what amounts the said defendant Michael Sweeney has received or is ac- countable for from the rents of the said premises, and what amount thereof should be allowed to him in extinguishment and payment of the said mortgage, to the end that upon the coming in and con- firmation of the said report, the proper adjudication may be had in re- spect to the said mortgage, adjudging and decreeing that the same has been paid, or what amount remains due thereon or otherwise, and as shall appear just and equitable in the premises, and that on the said reference, the said referee shall have all the powers and authority of a referee duly appointed by this court to ascertain and report the facts to the court, and that the said referee shall annex to his said report all proofs which shall be taken before him on the said reference, and if said referee finds anything is due on such mortgage, he is hereby directed to pay the amount so due to said Michael Sweeney. Enter. ,, C. H. TRUAX, J. S. Ct. ARTICLE XII. Dower Interest and How Affected by Sale. §§ 1567, 1568, 1569, 1570, 1 571. Rules 70, 68. § 1567. Sale of dowrer interest. Where a party has an existing right of dower in the entire property directed to be sold, at the time when an interlocutory judgment for a sale is rendered in an action for partition, the court must consider and determine whether the interests of all the parties require, that the right of dower should be excepted from the sale, or that it should be sold. § 1568. Purchaser to hold the property free therefrom. If a sale of the property, including the right of dower, is directed, the interest of the party entitled to the right of dower shall pass thereby ; and the purchaser, his heirs and assigns, shall hold the property free and discharged from any claim, by virtue of that right. In that case, the dowress is entitled to receive, from the proceeds of the sale of the whole property, a gross sum, in satisfaction of her right of dower, or to have one-third of those proceeds paid into court, for the purpose of being invested for her benefit, as prescribed in the next section with respect to the dowress of an undivided share. § 1569. Gross sum to be paid to or invested for tenant in dower, etc. A party to an action for partition, who has a right of dower, or is a tenant for life, or for years, in or of an undivided share of the property sold, is entitled to PARTITION. 213 Art. 12. Dower Interest and How Affected by Sale. receive from the proceeds of the sale, a gross sum, to be fixed according to tht: principles of law applicable to annuities, in satisfaction of his or her estate or in- terest. The written consent of the party to receive such a gross sum, acknowl- edged or proved, and certified, in like manner as a deed to be recorded, must be filed, at the time of, or before, the filing of the report of sale; otherwise, the court must direct that, out of the proceeds of the sale, which belong to the un- divided share to which the estate or interest attaches, one-third, in case of a dowress, and in any other case arising under this section, the entire proceeds, or such a proportion thereof as fairly represents the interest of the holder of the particular estate, be paid into court for the purpose of being invested for his or her benefit. § 1570. [Am'd, 1892.] Interests of ow^ners of future estates to be protected. Where it appears, that a party to the action has an inchoate right of dower, or any other future right or estate, vested or contingent, or that any person or persons not in being who may by any contingency become entitled to any interest or estate, in the property sold, the court must fix the proportional value of the right or estate, according to the principles of law applicable to annuities and survivorships, or set aside so much of the proceeds of sale to which the contin- gency attaches, and must direct that proportion of the proceeds of the sale to be invested, secured or paid over, in such a manner as it deems calculated to protect the rights and interests of the parties. § 1671. Married woman may release her interest. A married woman may release to her husband her inchoate right of dower, in the property directed to be sold, by a written instrument, duly acknowledged by her and certified, as required by law with respect to the acknowledgment or a conveyance to bar her dower; which must be filed with the clerk. Thereupon the share of the proceeds of the sale, arising from her contingent interest, must be paid to her husband. The wife cannot be compelled to relinquish her dower right. Jackson V. Edzvards, 7 Paige, 392. The courts lean towards protect- ing dower rights. Siniar v. Canady, 53 N. Y. 298. In partition by a plaintiff holding title through a sale of an undivided interest, licld^ that the inchoate dower right of the wife of the judgment debtor, and former tenant in common, remained in plaintiff's un- divided share, but was discharged against defendant's undivided share. In distributing the proceeds of sale, the value of the remaining and undivided dower right should be charged upon it, and paid for solely out of the share awarded to the plaintiff. Fordw. Knapp, 102 N. Y. 135. The inchoate right of dower of one of the tenants in real prop- erty is not paramount to the right of the husband, or of his co- tenant, to compel partition, and will not prevent it. Where 214 PARTITION. Art. 12. Dower Interest and How Affected by Sale. actual partition is made by the court the inchoate rights of dower in common attach to the portion allotted to their respec- tive husbands, in severalty, and not to the undivided portions or share of their husbands in the entire property. Huntington v. Huntington, 9 Civ. Pro. R. 182. The inchoate dower right of a wife is as much entitled to protection as the vested rights of a widow. MattJicws v. Duryec, 4 Keyes, 525. It was the intention of 2 R. S. 318, § 5, to cut off dower, as a general rule, and the dowress cannot claim, in another action, that she was unlawfully deprived of her dower right in an action of partition in which she did not make any claim of error. Jordan v. Van Epps, 85 N. Y. 427. Where one of the parties is a widow, and entitled to dower in a part of the premises and, also, to the use and occupation of such part until her youngest child becomes of age, the value of such interests, in money, can be ascertained and paid to her, if she consent to release her dower and accept a sum in gross, and her interests can be thus extinguished. Bond v. McNiff, 38 Supr. Ct. 83. The receiver of a life tenant becomes vested with all the right, title and interest of the life tenant where he has been substituted for such tenant in an action of partition, and has a right to file consent to receive gross sum. Wood V. Powell, 3 App. Div. 318. Rule 70. Gross sum in payment of life estate ; how ascertained. Whenever a party, as a tenant for the life or by the curtesy, or in dower, is en- titled to the annual interest or income of any sum paid into court and invested in permanent securities, such party shall be charged with the expense of investing such sum, and of receiving and paying over the interest or income thereof; but if such party is willing and consents to accept a gross sum, in lieu of such an- nual interest or income for life, the same shall be estimated according to the then value of an annuity of five per cent on the principal sum, during the prob- able life of such person, according to the Portsmouth or Northampton tables. PARTITION. 215 Art. 12. Dower Interest and How Affected by Sale. Annuity Table.* Table showing the Value of an Annuity of One Dollar on a Single Life, According to the Northa^npton Table of Mortality, at Five Per Cent Interest, referred to in Supreme Court Rule No. 70. No. of years' No. of years' No. of years' No. of years' Arc. purchase the Age. purchase the Age. purchase the Age. purchase the annuity is worth. annuity is annuity is worth. annuity is worth. worth. I "•563 31 12.965 61 8. 181 91 1.447 2 13.420 32 12.854 62 7.966 92 1. 153 3 14-135 33 12.740 63 7.742 93 .8x6 4 14.613 34 12.623 64 7-514 94 .524 5 14.827 35 12.502 65 7.276 95 .238 6 15.041 36 12.377 66 7-034 7 15.166 37 12.249 67 6.787 8 15.226 38 12. 116 68 6.536 9 15.210 39 11.979 69 6.281 10 15-139 40 11.837 70 6.023 II 15-043 41 11-695 71 5.764 12 15-937 42 "•551 72 5.504 13 14.826 43 11.407 73 5.245 14 14.710 44 11.258 74 4-990 15 14-588 45 II. 105 75 4-744 16 14 . 460 46 10.947 76 4-511 17 14-334 47 10.784 77 4.277 18 14.217 48 10.616 78 4.035 19 14.108 49 10.443 79 3.776 20 14.007 50 10.269 80 3.515 21 13-917 51 10.097 81 3.263 22 13-833 52 9-925 82 3.020 23 13-746 53 9.748 83 2.797 24 13-658 54 9-567 84 2.627 25 13-567 55 9-382 85 2.471 26 13-473 56 9-193 86 2-328 27 13-377 57 8.999 87 2.193 28 13.278 58 8.801 88 2.080 29 13-177 59 8.599 89 1.924 30 13.072 60 8.392 90 1.723 ♦Taken from " Jones on Annuities," vol. i, p. 244. Rules for Computing the Value of the Life Estate or Annuity, Calculate the interest at five per cent for one year upon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of each person in said sum. Suppose a widow's age is thirty-seven, and she is entitled to dower in real estate worth $350.75. One-third of this is $ii6.9if. 2l6 PARTITION. Art. 12. Dower Interest and How Affected by Sale. Interest on $116.91 one year at five per cent (as fixed by the 70th rule) is $5.85. The number of years' purchase which an annuity is worth at the age of thirty-seven, as appears by the table, is 1 2 years and yVoV parts of a year, which, multiplied by $5.85, the income for one year, gives $71.65 and a fraction as the gross value of her right of dower. Suppose a man whose age is fifty is tenant by the curtesy in the whole of an estate worth $9,000. The annual interest on the sum at five per cent is $450. The number of years' purchase which an annuity of one dollar is worth at the age of fifty, as per table, is iOj2^y„ parts of a year, which, multiplied by $450, the value of one year, gives $4,621.05 as the gross value of his estate in the premises or the proceeds thereof. Release of Dower by Widow. SUPREME COURT. CORNELIUS BRUYN agst. JAMES V. BRUYN and Others. I, Jane A. Bruyn, one of the defendants in the above-entitled action, hereby acknowledge the receipt from James A. Betts, the referee who sold the real estate of Cornelius A. Bruyn, deceased, under the judgment herein, of $2,372, being my share of the pro- ceeds of the sale under the said judgment in this action, and in consideration thereof I hereby release and quit-claim to Albert L. Roe, the purchaser at such sale, all my estate, right, title, interest, dower and right of dower in and to the premises sold as aforesaid. Witness my hand and seal this June 23, 1888. JANE A. BRUYN. [L. S.] The following direction was made as to a contingent dower right in an individual share: The principal of that one-third may, if the purchaser so elect, be retained in the trust company, to accumulate there until she shall be twenty-one years of age, and not to be paid out after she shall become of age except the inter- est to her husband or his heirs until she shall release her claim to it or depart this life, and at no time to be paid out without notice to the purchaser or his assignees, owners of the land. Moneys awarded to a wife for her inchoate right of dower seem now to belong to her absolutely. Benedict v. Seymour, 1 1 How. PARTITION. 217 Art. 12. Dower Interest and How Affected by Sale. 176. Where the present value of a contingent or inchoate right of dower is accepted, such value represents the present worth of the woman's dower right in the premises, and the sum paid or reserved in respect to the same is her absolute property without condition or contingency. Bartlett v. Van Zmidt, 4 Sandf. Ch. 376. The annuity tables have furnished the court with the means of ascer- taining the probable value of the wife's contingent right of dower during the life of the husband. These tables show the value of annuities which depend not only on the continuance of single lives of different ages, but upon the continuance of two or more joint lives. The proper rule for computing the present value of the wife's contingent right of dower, during the life of the husband, is to ascertain the present value of annuity for her life, equal to the interest in the third of the proceeds of the estate to which her contingent right of dower attaches, and then to deduct from the present value of the annuity for her life, the value of a similar annuity depending upon the joint lives of herself and her hus- band, and the difference between these two sums will be the present value of her contingent right of dower. Should it be necessary, in case of an infant or an adult wife, for the court to protect her contingent right of dower, upon a sale under a decree in partition, where the value of the husband's undivided share of the estate was such as to render it proper, the present value of that contingent right may be ascertained in that manner, and the amount may be invested in the trust company or savings bank, in the name of the register, to accumulate for the joint Hves of herself and her husband, so that the whole accumulated fund may then be paid over to her, or her personal representatives, at that time, in full of her share in the proceeds of the sale. Her rights may also be effectually protected, by directing the whole proceeds of her husband's share to be paid over to him, upon his giving security to the register or clerk, that the interest or income of one third of such proceeds shall be paid to his wife after his death, during the term of her natural life if she survives him. Jackson V. Edwards, 7 Paige, 408. In the course of the discussion, McKean's Practical Life Tables, page 23, is cited. This is an English work published in London, 1837, an American edition is published in 1876, consisting of two volumes, one an " Exposition of the practical life tables with digest of the most approved rules and formulae illustrated by :i8 PARTITION. Art. 12. Dower Interest and How Affected by Sale. numerous examples for the solution of all cases occurring in the actual daily business of life assurance, annuities, reversions, etc., the other containing very voluminous tables, entitled, " Practical life tables by Alexander McKean, digest from the Northampton, Carlisle, and recent government observations, containing upwards of fifteen thousand distinct quantities and affording, without the necessity of reference to any other tables, correct data for the ready solution of all cases occurring in the actual transaction of business in life assurance and annuities." In the previous edition of this work, one of the tables was given by way of illustration. It is now omitted, however, as being valueless, as it tended rather to confuse than aid the prac- titioner, resort being necessary to the full tables for all computa- tions. The necessity for these tables is clearly stated in " Tables for ascertaining the present value of vested and contingent rights of dower, curtesy, annuities and all other estates " by Giauque and McClure, in which it is said : " The ascertaining of the present value of contingent life estates, such as inchoate right of dower or a curtesy, requires the use of an annuity table showing the value of an annuity during the joint continuance of two lives, these being in the case of dower or curtesy the lives of the hus- band and wife, and owing to the large number of possible combi- nations of ages of these two lives, these tables are necessarily quite voluminous and are to be found complete only in technical books that are scarce and expensive and which are practically inaccessible to most persons who need them with reference to such matters as well as somewhat difficult for some of such persons to understand at first sight." Still another set of tables has been prepared by Eugene Stearns, under date of Utica, July, 1888, entitled " A short method for the computation of the present value of the inchoate right of dower, life estate, dower, etc., according to the Northampton tables." This, while not so elaborate and full as the others, seems to contain all that is necessary for the purposes indicated, and its object is stated in the introductory note as follows : " The need of a simple method of computing the inchoate right of dower which should comply with the rules laid down in Jackson v. Edwards, 7 Paige, 386, and give an accurate result at less expense of labor and time, has long impressed itself upon the attention of the author. The method adopted in the following tables it is PARTITION. 219 Art. 12. Dower Interest and How Affected by Sale. confidently believed fully meets the requirements in these respects." The tables are entitled " Tables .showing the present value of a wife's inchoate right of dower in an estate of one dollar at any given ages between fourteen and seventy-two, calculated at five per cent. Banks V. Banks, 2 S. C. 483, seems to be obsolete by reason of the fact that the portion of the rule there decided to be in conflict with the Revised Statutes does not appear in the rule as it now .stands, it evidently having been amended by dropping the obnox- ious provision. The old chancery rule providing for the investment of chancery funds is still in force. Chesterma?i v. Eyland, 81 N. Y. 398, modified by subsequent rules. Rule 68. Payment of money into court ; designation of trust companies, etc. When the court shall make special directions for the payment or investment of money pursuant to sections 744, 745 and 747 of the Code, it must require such money to be paid to or invested by such trust company as has heretofore been designated by the Supreme Court, or as shall hereafter be designated by the ap" pellate division for that purpose. Any trust company organized under the laws of this State may apply to the appellate division of the Supreme Court, in the department in which its princi- pal office is situated, to be designated as a deposit bank for such moneys. Upon such applications the court shall direct a reference to ascertain the condition of the trust company making such application; and the referee so appointed shall examine the securities of the company and shall report to the court its financial condition and the general nature of the business transacted by it, specifying in such report the amount of all obligations or liabilities of the company, the amount of its capital stock outstanding, the general nature of its investment and the amount of its surplus. If it shall appear from such report to the satis- faction of the court that moneys deposited in such company would be safe and the company should be designated as such depository, the court may in its dis- cretion designate such company as a deposit bank for such moneys. The ex- penses of such reference shall be paid by the corporation making the applica- tion, and before ordering the reference the court may require a sufficient sum to pay such expenses to be deposited in court. Whenever, by order or judgment, moneys are to be brought into court, it shall be the duty of the attorney, on whose motion the same are to be so brought into court, to file with the county treasurer, or with the bank or company to whom the same are to be paid, according to the said order or judgment, or according to the practice of the court, a certified copy of said order or judgment. The court may, however, direct that only a specified part of the same need be filed, which part shall be suiTlcient to show to whom the moneys so brought into court belong. In all cr.scs provided for by this rule arising in the city and county of New York, the chamberlain of said city shall be the officer indicated by the words *' county treasurer." 220 PARTITION. Art. 13. Sale, Report of Sale and Confirmation, Resale. Chancery Rule 180. Investment of funds paid into court. " Whenever a party, as tenant for life, or by the curtesy or in dower, is entitled to the annual interest or income of any sum paid into court and invested in per- manent securities, such parties shall be charged with the expense of investing such sum and of receiving and paying over the interest or income thereof; but if such party is willing and consents to accept a gross sum in lieu of such annual inter- est or income for life, the same shall be estimated according to the then value of an annuity of six per cent on the principal sum during the probable life of such person, according to the Portsmouth or Northampton Tables. And where money belonging to an infant, or an absentee, or to an unknown owner, is brought into court for his benefit under a final decree in partition, if no direction for the investment thereof is contained in the decree; and the money is not applied for within six months thereafter, it shall be the duty of the register, assistant register or clerk with whom the same is deposited, and without any special order for that purpose, to cause it to be invested in the public stocks, or other permanent securities, or in the New York Life Insurance and Trust Com- pany, to accumulate for the benefit of the party entitled thereto. " He may also in like manner reinvest the income of such money from time to time, without any special order for that purpose, whenever, in his opinion, the amount of such income is sufficient to render an investment thereof proper and beneficial to the person interested therein. " And where money is brought into court upon the sale of infant's estate by a special guardian, if the infant will not arrive of age within six months then after it shall be the duty of the register, assistant register or clerk to whose credit such money is deposited in bank, without any special order of the court for that purpose, to deposit such money in the trust company, to accumulate or to invest the same in the public stocks of this State or of the United States, or to invest it upon bond and mortgage, upon unincumbered real estate of double the value, exclusive of buildings, payable when the infant becomes of age, or sooner if required, to be paid by the order of the court, with interest, to be paid annually or semi-annually, and to reinvest the same from time to time as above directed." ARTICLE XIII. Sale, Report of Sale and Confirmation, Resale. § IS76. Sub. I. Report of sale and confirmation. § 1576. 2. Purchaser, vs^hen compelled to take title. 1576. Sub. I. Report of Sale and Confirmation. § 1576. Report of sale. Immediately after completing the sale, the officer making it must file with the clerk his report thereof under oath, containing a description of each parcel sold, the name of the purchaser thereof, and the price at which it was sold. The method of conducting the sale of real estate is treated under §§ 1677, and 1678 where the authorities are collated under title " Sale of real estate," also rules relative to resale and distribu- tion of proceeds of sale. PARTITION. 221 Art. 13. Sale, Report of Sale and Confirmation, Resale. The purpose of the statutory rule making a final judgment in partition conclusive, is to give unqualified support to the judg- ment and confirmation. Prior v. Prior, 18 St. Rep. 566, s. C. 15 Civ. Pro. R. 436, 49 Hun, 502, The title of a purchaser at a partition sale is good not only as against the parties to the action and their representatives, but against any person claiming from or under such party by title accruing after the filing of lis pendents. Brooks v. Ackerly, 16 St. Rep. 656. Where the land was in two parcels, but would sell to better advantage in such parcels than if divided between the co-tenants, it was held that it should be sold, although one of the parties de- sired to have the share set off to retain for an advance in price, since, as her interest was greater than the value of the smaller lot, she could buy it in. Coster v. Coster, 50 St. Rep. 880, 21 Supp. 203. A deed from the holder of an outstanding interest, to a defend- ant in partition, executed subsequently to the decree, will not vest such interest in the property in the purchaser at a partition sale. Bogcrt v. Bogert, 6 N. Y. Supp. 299. A person in possession of premises claiming a right for a term of years, is not affected by the judgment in an action brought after the commencement of such term for partition, to which he is not a party. Moorcs v. Townshend, 54 Supr.Ct. 245. The expenses of extra advertising by a referee, not previously authorized by the court, cannot be allowed from the proceeds of the sale. Stewart v. Paton, 23 Civ. Pro. R. 286, 29 Supp. 770. There is no authority for an order before the sale, authorizing the referee to do extra advertising. Baldwin v. Baldivin, 23 Civ. Pro. R. 268, note. The publication of notice by referee in partition in one news- paper is sufficient under § 1562, where the property is all within one county. Connor v. Connor, 36 St. Rep. 823, 20 Civ. Pro. R. 308, 13 Supp. 402. Where, the plaintiff, with the knowledge and approval of the other parties, took proceedings to compel the purchaser of the property to take title, in which he was successful, though they did not agree to reimburse the expenses ; Jicld, he was not entitled to an order of the Special Term directing the referee and receiver in the partition suit to pay the amount out of the fund, the court 222 PARTITION. Art. 13. Sale, Report of Sale and Confirmation, Resale. having no authority to grant it. Roarty v. McDermott, 89 Hun, 511. Where the referee in partition paid the costs awarded in an interlocutory judgment, under an agreement that they should be repaid if the purchaser refused to complete the purchase and the referee was compelled to return the deposit of the purchaser, it was held that he could in an action recover his fees and disburse- ments from the plaintiff, but not the costs so paid, since the in- sertion of the costs in the interlocutory judgment was not authorized by law. Flynn v. Kennedy, 62 Hun, 26, 41 St. Rep. 359, 16 Supp. 361. Notice of Sale in Partition. SUPREME COURT — Ulster County. Sarah A. Kelly agst. Sarah Ann Van Nostrand, Mary Wheeler and George Wheeler, her husband; Caroline Lyons and John Lyons, her husband; Sarah Hunt and Lorenzo Hunt, her husband; Annette Ennist and Alonzo Ennist, her husband, Frank Van Nostrand, Elias T. Van Aken, an infant, by Nicholas E. Brod- head, his guardian ad litem ; James E. Ostrander, individually and as administrator of the goods, chattels and credits of Elias T. Van Nostrand, deceased, and Virginia E. Ostrander, his wife; Alfred Van Nostrand, individually and as ad- ministrator of the goods, chattels and credits of Elias T. Van Nostrand, deceased, and Cathalina Van Nostrand, his wife, and John B. Kelly. In pursuance of a judgment in the above-entitled action of par- tition, entered in the ofifice of the clerk of the County of Ulster, on the 9th day of June, 1888, I, the undersigned referee, in and by said judgment for that purpose appointed, will sell at public auction at the front door of the court house in the City of Kingston, Ulster County, New York, on Saturday, the 7th day of July, 1888, at ten o'clock A. M., the lands and premises in said judgment directed to be sold and therein described as follows: (Here insert description.) Dated June 9, 1888. JOHN W. SEARING, Referee. JAMES A. BETTS, Plaintiff's Attorney. WILLIAM T . HOLT, Attorney for some Defendants. PARTITION. 223 Art. 13. Sale, Report of Sale and Confirmation, Resale. Precedent for Notice of Application for Order Confirming Report of Sale and for Final Judgment. SUPREME COURT — Albany County. JOHN W. McHARG, et al, agst. RUFUS K. McHARG, et al. You will please take notice that upon the referee's report of sale in this action, which was filed in the Albany County Clerk's office on the ist day of June, 1892, a copy of which is herewith served upon you, and upon all papers heretofore served and proceedings had, the Supreme Court of the State of New York will be moved at a Special Term thereof to be held at the City Hall in the City of Albany on the 3rd day of June, 1892, at the opening of the court on that day or as soon thereafter as counsel can be heard, for an order confirming said referee's report of sale and for a final judgment in the above-entitled action and for an extra allowance to the plaintiff and for such other and further relief in the premises as may be proper. MARCUS T. HUN, Attorney for Plaintiff. To JOHN J. KINNEY, ESQ., Attorney for Evelyn N. Post, et al, FRANK W. STEVENS, ESQ., Attorney for Robert N. Marvin et al, JAMES FENIMORE COOPER, Guardian ad litem for Katharine F. Clarke, and HON. SIMON W. ROSENDALE, Attorney-General, Attorney for the People of the State of New York. 224 PARTITION. Art. 13. Sale, Report of Sale and Confirmation, Resale. Precedent for Referee's Report of Sale. SUPREME COURT — Albany County. 1- John W. McHarg and Harriette D. McHarg, his wife, Plaintiffs, agst. Rufus K. McHarg and Harriet S. McHarg, his wife; Charles K. McHarg and Harriet P. McHarg, his wife; William N. McHarg and Selima S. McHarg, his wife; Henry K. McHarg and Frede- ricka B. McHarg, his wife; Franklin Clarke and Louie O. Clarke, his wife; Selden E. Marvin and Katharine L. Marvin, his wife; Robert N. Marvin and Elizabeth Marvin, his wife; Richard P. Marvin, Jr., William Donaldson, John M. W^ood, David F. Cassort and Flora A. Cassort, his wife; Sophia K. Porter and Horace Porter, her husband, et al, Defendants. To the Supreme Court of the State of New York : I, William Bayard Van Rensselaer, the referee appointed by the interlocutory judgment entered in the above-entitled action on the 29th day of March, 1892, to sell the premises described in the in- terlocutory judgment herein, do respectfully report: That I advertised said premises to be sold by me at public auction at the main entrance and hallway of the City Hall in the City and County of Albany and State of New York at twelve o'clock noon on the 25th day of April, 1892. That previous to said sale I caused notice thereof to be publicly advertised for three weeks successively, as follows: By causing a copy of such notice to be printed twice on each week during the three weeks immediately preceding such sale, in a public newspaper printed in said County of Albany, New York, to wit: The Argus, printed at the City of Albany in said county, which notice contained a description of said mortgaged premises. I do further report that on the said 25th day of April, 1892, the day on which said premises were so advertised to be sold as afore- said, I attended at the time and place fixed for said sale, and ex- posed said premises for sale at public auction to the highest bidder, and that the said premises were then and there fairly struck off to Henry M. Kramrath for the sum of three thousand dollars, he being the highest bidder therefor and that being the highest sum bidden for the same. That the terms and conditions of said sale were reduced to writing and made known to the persons attending such sale previous thereto. That the said Henry M. Kramrath signed the written con- PARTITION. 225 Art. 13. Sale, Report of Sale and Confirmation, Resale. ditions of sale above mentioned, and that since said date he has paid to me the full amount of the purchase price, and is entitled to a deed when said sale is confirmed by the court. That the plaintiff, John W. McHarg, has accounted to me for all the rents received by him since the death of Jane Barker, the tes- tatrix, and has paid over to me the sum of one hundred and eighty dollars and seventy-three cents ($180.73), being the net amount of rents received by him, and which should be distributed by the judg- ment herein. I do further report that the said John W. McHarg should be dis- charged from all liability and accountability for his acts in receiving the rents and profits of the premises hereinafter described since the death of the said Jane Barker. I do further report that the plaintiff Harriette D. McHarg has released to her husband, the plaintiff John W. McHarg, her inchoate right of dower in the property hereinafter described, but that none of the wives of the defendants have so released their dower interest. The premises are described as follows: (Insert description.) All of which IS respectfully submitted. Dated, Albany, May 31st, 1892. WILLIAM BAYARD VAN RENSSELAER, Referee. Sub. 2. Purchaser, when Compelled to Take Title. An order to compel a purchaser in partition to take title was refused where he claimed that the land was subject to the lien of the legacies. As the legatees were not parties to the suit therein, their rights could not be adjudicated and the objection was not frivolous. Jordan v. Poillon, yj N. Y. 518. Where a mortgagee was made a party in an action of partition and litigated the question as to the validity of the mortgage therein, held, that the court acquired jurisdiction to adjudicate the question, although defendant claimed, as a matter of law, that affirmative relief could not be given against him in such an action. Barnard v. Ondcrdonk, 98 N. Y. 158. A judgment in partition of land held by parties, which directs a partition by the commissioners, and charges a mortgage held by one party covering the undivided interest of the other upon the separate share of the latter, is not, where no decision has already been made, a bar to the foreclosure of the mortgage. Rcidv. Gardner, 65 N. Y. 578. A sale in a partition of lands did not cut off the lien of the creditor of the ancestor. Mead v. Jenkins, 27 Hun, 570. A sale in an action of partition which is confirmed by the final judgment is binding and conclusive on all the parties to the action, who have [Spkcial Actions — 15.] 226 PARTITION. Art. 13. Sale, Report of Sale and Confirmation, Resale. duly appeared or been served in the action, and upon their legal representatives. Although every purchaser at the partition sale is entitled to a title which shall be reasonably free from dispute, yet, where a duly appointed guardian ad litem, of an infant defend- ant neglects to object to the fact that the action is improperly brought by the tenant by the curtesy, a judgment and sale therein is not rendered invalid. An objection by a purchaser that the property is subject to sale for the debts of decedent, is suffi- ciently answered by showing that such decedent left sufificient personal property to pay all claims against the estate. Reed v; Reed, 13 Civ. Pro. R. 109, 46 Hun, 212, affirmed 107 N. Y. 545. This case was followed in Prior v. Prior, 49 Hun, 502. An adjudi- cation in an action of partition that a particular conveyance is only a mortgage, is binding on all the parties to the action. Manolt v. Petrie^ 65 How. 206. A judgment in partition may be vacated like other judgments. Where the title to a portion set off to one party failed, it was held that the judgment might be opened and a new partition ordered, but in view of the lapse of ten years and the complicated nature of the case, the parties were left to a new action. Marvin v. Marvin, i Abb. N. C. 372. See cases cited under § 1678. Where the purchaser at a sale asks to be relieved because the published notice to lienors gave the names only of two share-own- ers, and judgment and mortgage creditors of one of them are not co-parties, and it appeared that such creditors appeared and proved their claims before the referee, and that the referee found no lien against the share-owners not named, it was held objection to the title could not be upheld. Doremus v. Doremus, 66 Hun, III, 49 St. Rep. 800, 21 Supp. 13. Where the records fails to show that persons who would be neces- sary parties, if capable of taking an interest in the property but were not joined, were incapable of so taking, and therefore pro- perly omitted, such omission renders a title doubtful, within the rule that the purchaser will not be required to take a doubtful title. Toole M. Toole, 112 N. Y. 333. Where a resale was ordered and the order amended by striking out a provision that the purchaser at the first sale and the plain- tiff should be liable for the deficiency on the resale; held, it was error on the part of the referee to refuse to receive his bid on the resale or to allow the money paid on the first sale to be applied PARTITION. 227 Art. 13. Sale, Report of Sale and Confirmation, Resale. on the second, and that a third sale should be ordered. Fay v. Fay, 69 Hun, 149 and 150, 52 St. Rep. 610, 23 Supp. 408. A purchaser at a partition sale is not bound to take the title unless he can be put in possession under the decree of sale. Kapp V. Kapp, 15 St. Rep. 967. One of the tenants by the entirety, who is not a party to an action of partition, cannot be put out of possession under the judgment. O' Conor v. McMahon, 26 St. Rep. 596. Lapse of time in completing title may relieve a purchaser from his bid. Rice v. Barrett, 99 N. Y. 404, followed Darrow v. Horton, 6 St. Rep. 718. SeQ, however, Merchants' Bankv. Thompson, 55 N. Y. 7; Frost v. Hirschberg, 17 Weekly Dig. 224. But the purchaser makes his bid upon the implied warranty that the title will be marketable. Flemings. Bitrnhain^ 100 N. Y. i ; Shriver v. Shriver, 86 N. Y. 575 ; Jordan v. Poillon, jy N.Y. 518. He is entitled to a merchantable title. Mead v. Mead, 24 St. Rep. 455; Herring v. Berrian, 8 St. Rep. 124. Where the title can be cured, the purchaser will be obliged to complete his purchase. Hellrigelv. Manning, 97 N. Y. 56; Mur- ray V. Harway, 56 N. Y. 337. A purchaser at a partition sale is entitled to demand a market- able title, one which is free from reasonable doubt as to its vali- dity. If an essential act has been omitted or unseasonably taken in the action, which may render the judgment ineffectual as to any of the parties in interest, it is the duty of the plaintiff to take the proper steps for curing the defects before he can be held upon a motion to compel the purchaser to complete his purchase. Cronter V. Crouter, 133 N. Y. 55. The purchaser will be relieved if after the date of sale and be- fore the delivery of the property, it has been materially injured. The Mutual Life Ins. Co. v. BaleJi, 4 Abb. N. C. 200. A purchaser will not be relieved because the action was brought by tenant by curtesy or on the ground that the guardian ad litem of the infant failed to file a bond for each of the infant parties. Tilton V. Vail, 25 St. Rep. 212; Reedw. Reed, 46 Hun, 212. Where the liability of a person interested, who was not a party, being alive or leaving a widow or heirs, is a remote and improba- ble contingency, it is a proper exercise of discretion to compel a purchaser to complete the sale. Cambrelung v. Purton, 36 St. Rep. 190. 228 PARTITION. Art. 13. Sale, Report of Sale and Confirmation, Resale. Where every living person who had any interest, vested or con- tingent, in the property, were parties to the suit, it was held that after-born children who might have an interest in the real estate sold under it, would be concluded by the judgment, and could not successfully assail the title of a purchaser under it. Kirk \. Kirk, 137 N. Y. 510, 51 St. Rep. 267. The rule is not absolute that a disputable fact supposed to cloud the title, which is not determined by the judgment in an action of partition, is in every case a bar to the enforcement of the sale under the judgment. If the existence of the alleged fact is a possibility merely, or the alleged outstanding right a very improbable and remote contingency, the court may, in its discre- tion, compel the purchaser to complete his purchase. Ferry v. Sampson, 112 N. Y. 415. To the same effect, Cambrcling v. Piirton, 34 St. Rep. 908. But where the judgment did not suffi- ciently or conclusively, as against the heirs not made parties, establish their incapacity to take an interest, the purchaser was relieved from his purchase. Toole v. Toole, 112 N. Y. 333. The title of a purchaser is not affected unless the judgment rendered is actually set aside. The fact that the judgment of sale might have been set aside as irregular, is not a ground for relief, if the court had jurisdiction of the subject-matter and had power to render the judgment. DeForest v. Farley^ 62 N. Y. 628. Nor will he be relieved where he gets substantially what he contracts for and there are only apparent defects in the title, of which he had due notice, and in reference to which he may be supposed to have made his bid. Riggcs v. Piirsell, 66 N. Y. 193 ; CoatesM.Fairehild, 14 Week. Dig. 189; Mott v. Mott,6^ N. Y. 246. Precedent for Notice of Motion on Application to be Relieved from Purchase. SUPREME COURT — City and County of New York. FRANCES NATHAN and Others, Plain- tiffs, agst. EDMUND HENDRICKS and Others, De- fendants. \ 147 N. Y. 348. You will please to take notice that Morris B. Baer, the purchaser at the sale on April 2d, 1895, of the premises described in the in- PARTITION. 229 Art. 13. Sale, Report of Sale and Confirmation, Resale. ter.ocutory judgment entered in this action dated March 6th, 1895, will apply to this court at Special Term thereof to be held at the Chambers in the County Court House in the City of New York on Monday, the 13th day of May, 1895, at 10:30 o'clock a. m., upon all the proceedings herein and upon tlie annexed petition made by him dated May 8th, 1895, for an order relieving him from his purchase and directing the return to him by the referee herein of the sum of $4,060 paid on account of the purchase price of such sale and also the payment to him by the plaintiffs herein of interest on the sum so paid, together with the sum of $17, being the auctioneer's fee paid at said sale, and $375.50, being the expenses incurred by him for counsel fees and searches in the examination of the title to said premises, and also for such other or further relief and order as may be proper, besides the costs of this motion. Dated May 8th, 1895. Yours, etc., TOWNSEND WANDELL, Attorney for Morris B. Baer, the purchaser. To WILLIAM M. HOES, ESQ., Referee. EDGAR J. NATHAN, ESQ., Plaintiff's Attorney. Precedent for Petition to be Relieved from Purchase. SUPREME COURT — City and County of New York. FRANCES NATHAN and Others, Plain- tiffs, agst. EDMUND HENDRICKS and Others, De- fendants. )■ 147 N. Y. 348. To the Supreme Court of the State of Neiv York : The petition of Morris B. Baer respectfully shows: That on the second day of April, 1895, the premises Number 27 Mercer street, particularly described in the interlocutory judgment of partition and sale in this action dated March 6th, 1895, vvere put up for sale by William M. Hoes, Esq., the referee therein named, at the New York Real Estate salesroom. No. in Broadway, in the City of New York, pursuant to said judgment and of the notice of sale given by virtue thereof, and the said premises were thereupon struck off to your petitioner, the highest bidder at such sale, for the sum of $40,600, and that pursuant to the terms of such sale, your petitioner paid the referee $4,060, being ten per cent of the sum bid, and $17 to Peter F. Meyer, the auctioneer, for his charges in conducting the sale. That your petitioner thereupon retained Town- 230 PARTITION. Art. 14. Final Judgment, its Contents and Effect. send Wandell as his attorney to examine the title to said premises, and was subsequently informed and advised by him that the title to said premises is defective and unmarketable, and pursuant to his advice and because of the defects in said title, your petitioner caused the objections to the title to said premises to be duly formulated and a copy thereof to be served on the said referee and on the plaintiff's attorney on April 29, 1895, and that annexed hereto as a part hereof, marked " Exhibit A," is a copy of said objections. Your petitioner declares, upon information and belief, that the facts stated in said objections as the grounds for refusing to take the title to said premises are true. That, as your petitioner is ad- vised and believes, the title to said premises which may be conveyed by the referee herein is not good or marketable. That your petitioner has incurred an expense of $375-5° ^o^ coun- sel fees and searches in the examination of said title. Wherefore your petitioner prays that he may be relieved from his purchase and that an order be made and entered herein and direct- ing the referee to reimburse your petitioner the amount paid by him on account of the purchase price, to wit: requiring the plaintiffs to pay your petitioner interest on the sum so paid, together with $4,060, and also $17, the amount paid for auctioneer's fees, and $375.50 expenses incurred for the examination of the title to said premises, and that he may have other order or relief as may be proper. Dated, May 8th, 1895. MORRIS B. BAER, Petitioner. ARTICLE XIV. Final Judgment, its Contents and Effect. §§ 1577, 1578, 1579, 1580, 1581, 1582, 1583, 1584, 1585, 1586, 1589, 1595. Sub. I. Contents OF FINAL JUDGMENT. §§ 1577, 1578, 1582-1586, 1595. 2. Distribution of proceeds of sale. §§ 1580, 1581. 3. Rents may be adjusted. § 1589. 4. Costs. § 1579. Sub. I. Contents OF Final Judgment. §§ 1577, 1578, 1582-1586, 1595- ^ 1577. Final judgment ; effect thereof. If the sale is confirmed by the court, a final judgment must be entered, con- firming it accordingly; directing the officer making it to execute the proper conveyances, and take the proper securities pursuant to the sale; and also di- recting concerning the application of the proceeds of the sale. Such a final judgment is binding and conclusive upon the same persons, upon whom a final judgment for partition is made binding and conclusive by section 1557 of this acf and it effectually bars each of those persons, who is not a purchaser at the sale, from all right, title and interest in the property sold. PARTITION. 231 Art. 14. Final Judgment, its Contents and Effect. §1578. [Am'd, 1883.] Id.; eflfect thereof upon incumbrancers. Such a final judgment is also a bar against each person, not a party, who has, at the time when it is rendered, a general lien by judgment or decree on the un- divided share or interest of a party, if notice was given to appear before the referee, and make proof of liens, as prescribed in section 1562 of this act, and also against each person made a party, who then has a specific lien on any such undivided share or interest; but a person having any such specific lien appear- ing of record at the time of the filing of the notice of the pendency of the action, who is not made a party, is not affected by such judgment. § 1582. [Am'd, 1893.] Id.; of unknown and absent owners. Where a person has been made a defendant as an unknown person, or where the name of a defendant is unknown, or where the summons has been served upon a defendant without the state, or by publication, and he has not appeared in the action, the court must direct his portion to be invested in permanent secu- rities, at interest, for his benefit, until claimed by him or his legal representa- tives; but after the lapse of twenty-five years from the time of the payment into court, or to the treasurer of any county, of any portion of the proceeds of the sale of real property, for unknown heirs, heretofore or hereafter to be made in any action of partition, without any claim therefor having been made by any person, entitled thereto, and upon there being made and presented to the court, at a special term thereof, proof, by petition or otherwise, showing to the satis- faction of the court that due inquiry for such unknown heirs, or their representa- tives, has been made and that they cannot be found, and that no claim has been made for such portion of said proceeds by any person entitled thereto, pro- ceedings shall thereupon be taken in said court, and an investigation had therein, as to the heirship, death or whereabouts of such unknown heirs or their representatives, and as to the known heirs of the ancestor of such unknown heirs, the next of kin, representatives and distributees of such known heirs, and as to all persons interested in such proceeds, and their respective in- terests therein, and the said court shall, by an order made in the action, direct that a notice entitled in the action and signed by the petitioner, or his attorney, and directed to such unknown heirs or their representatives, and to known heirs, their next of kin, representatives or distributees, and all persons inter- ested in such proceeds, be served upon them by the publication thereof, the same to be published once in each week for six successive weeks in a newspaper pub- lished in the county where the action was brought, and in such other newspa- pers as the court may direct, ordering and requiring such unknown heirs, or their representatives, and all known heirs, their next of kin, or representatives, and all persons interested in such proceeds, and each of them to be and appear in said court at a special term thereof, at a time and place to be specified in said order and notice, and at least six weeks from the date of the first publication of such notice, to then and there establish their heirship and identity, kinship and inter- est, and submit any proof, as to such unknown heirs, or their representatives, and the known heirs, their next of kin, representatives or distributees, and all persons interested and their interest in such proceeds, they may desire, and that in case of their default in so doing, that the said proceeds will be distributed and paid over to the known heirs of the ancestor from whom such unknown heirs derived title thereto, and to their heirs, next of kin, repre- 232 PARTITION. Art. 14. Final Judgment, its Contents and Effect. sentatives, distributees and assigns, and that they and each of them shall there- after be forever barred of and from all and every cause or causes of action for such proceeds, or on account thereof, or growing out of the distribution thereof, and of and from all right, title, claim and interest in and to such proceeds, and shall be deemed to have surrendered all right, claim and interest in and to such proceeds. The order must contain a direction that a copy of the notice must be served on each of the persons named in the order, if within the state, in the manner prescribed for the service of a summons on a defendant in an action in the supreme court, at least twenty days before the time specified in the notice. The publication of such notice, as required by said order, is hereby made and shall be deemed and taken for all purposes to be due and complete service upon each and every of such unknown heirs or their representatives, and the known heirs, their next of kin, and representatives, and all persons interested in such proceeds, of due notice of the proceedings to distribute and pay out such pro- ceeds, and shall be conclusive upon each and all of them. Proof of such per- sonal service may be made by the affidavit of the person making the same, and proof of the publication of such notice may be made by affidavit of the pub- lisher of such paper or papers. At the time and place specified in the said order and notice, such unknown heirs or their representatives, and all known heirs, their next of kin, representatives or distributees, devisees, and all persons in- terested in such proceeds, shall appear in court, in person or by attorney, and make proof establishing their heirship and identity, kinship and interest in such proceeds, and upon proof being made to the satisfaction of the court of the heirship and identity of the unknown heirs, the proceeding for distribution shall be dismissed. And if such unknown heirs or their representatives, do not so appear in court at the time and place specified in such notice and order, to estab- lish their heirship and identity, kinship or interest, they and each of them, and every person claiming under or through them, shall thereafter be forever barred of and from all and every cause or causes of action for such proceeds, or on account thereof, or growing out of the distribution of such proceeds, and of and from all right, title, claim and interest in and to such proceeds, and shall be deemed to have surrendered all right, claim and interest in and to such pro- ceeds. And upon proofs being made of such publication, and showing to the satisfaction of the court that such unknown heirs or their representatives cannot be found, or are dead, the said court shall have power to decree accordingly, and to decree that the share or interest of such unknown heirs in such real prop- erty was vested, at the time of such sale, in the known heirs of the ancestor from whom such unknov/n heirs derived title thereto, and to decree that the un- claimed portion of such proceeds was vested at the time of such payment in such known heirs, and that such heirs, their heirs, next of kin, representatives, distributees, devisees and assigns, are entitled thereto; and the said court shall make an order in such action, directing the payment to them, or their assigns, of the respective shares or portions of, or interest in such proceeds to which they are entitled; and which order shall be entered in the office of the clerk of the county where the original action was brought, and after having been so en- tered for three months, shall be conclusive evidence of the regularity of the proceedings upon which it is based, and of all the facts set forth therein; and, upon serving upon the county treasurer a certified copy of such order, the treasurer shall so pay over and distribute such proceeds, after deducting his law- PARTITION. 233 Art. 14. Final Judgment, its Contents and Effect. ful commissions, and shall thereupon be exempt from all liability on account thereof; and if any such proceeds shall have been paid over by any county treasurer to the treasurer of the state of New York, under the provisions of section seven hundred and fifty-three of this act, due notice of said applications and proceed- ings shall be given to the comptroller of the state of New York, and the said proceeds shall be paid out by the treasurer of the state of New York, as pro- vided by sections seven hundred and fifty-one and seven hundred and fifty-three of this act, and upon such payment he shall thereupon be exempt from all liability on account thereof. § 1583. Id.; of tenants ot particalar estates. Where a portion of the proceeds representing an undivided share or interest, is invested for the benefit of a tenant for life, or for years, or of a widow, as prescribed in the foregoing provisions of this article, the court must cause it to be invested in permanent securities, at interest, and the interest to be paid, from time to time as it accrues, to the person for whose benefit it is invested, while his or her right continues. § 1584. Court may require security to refund. The court may, in its discretion, require any person, before he receives his portion of the proceeds of the sale, to give such security as it directs, to the people, or to such parties or other persons, as it prescribes, to refund the same, or a portion thereof, with interest, if it thereafter appears that he was not entitled thereto. § 1585 Security tc be taken in name of county treasurer. A security taken under any provision of this article, except as otherwise specially prescribed therein, must be tal'en in the name and official title of the county treasurer of the county in which the property sold is situated. He, and his successors in office, must hold the same for the use and benefit of the persons interested, subject to the order of the court. § 1586. Action thereupon. The court may in its discretion, and upon such terms and conditions as justice requires, make an order, allowing a person interested in a security specified in the last section, to maintain an action thereupon in the name of the county treasurer. § 1595. Exemplified copy of judgment may be recorded. An exemplified copy of the judgment-roll, or of the final judgment, in an action for partition, may be recorded, in the office for recording deeds, in each county in which any real property affected thereby is situated. Chapter 39, Law.s of 1889, amending § 1582, was declared as to certain provisions to be unconstitutional in Miller v. Ryder, 124 N. Y. 500, decided March, 1891. The section was again amended in 1 89 1, presumably to meet the questions passed on by the Court of Appeals. It was again amended as above in 1893. 234 PARTITION. Art. 14. Final Judgment, its Contents and Effect. The share of the plaintiff may be charged with the amount of a Hen upon the entire property, which, as between the plaintiff and the common ancestor, plaintiff was equitably obliged to pay. Evarts v. Woods, 6 N. Y. Supp. 200. A judgment in an action to construe a will was held not to bind remaindermen and to be ground for setting aside sale in Monarqne V. Mojiarguc, 80 N. Y. 320 ; see, also, Schcit v. Lehning, 31 Hun, 183. An existing invalid assessment will not relieve a purchaser. Chase V. Chase, 95 N. Y. 373. Where property is devised in trust to apply the rents and profits and then over to designated persons, the trust, even if invalid as such, is good as a power. The testator did not die intestate as to any of his property, and a purchaser in partition, to which all the devisees and legatees were parties, takes a marketable title although testator's heirs were not represented. Hoepfner v. Sevestre, 10 Supp. 51. Where partition has been made, and parties have received their dues and acted upon the assumption that partition was effectual, it will be held valid though there were irregularities in the proceed- ing. Conkling v. N. V. Elevated Ry. Co. 76 Hun, 420, 59 St. Rep, 316, 27 Supp. 1098. An action of partition is not a proceeding in rem, and the judgment therein and the deed do not establish title as against third persons where the parties to such action are not shown to have had either title or possession. Greenleaf v. Brooklyn, etc. R. R. Co. 141 N. Y. 395, 57 St. Rep. 613. A very full note on special clauses in judgments for partition, selected from recent precedents, will be found 20 Abb. N. C, at page 102. The provisions of § 1582 as amended in 1891, providing for the distribution of moneys deposited in a partition suit after a lapse of twenty-five years, were held unconstitutional in People ex rel. Griffin v. Rider, 47 St. Rep. 492, 19 N. Y. Supp. 977. This section was again amended in 1893. Where no provision is made in a judgment to protect the contingent interests of chil- dren not yet in being, such interests are not affected by the judg- ment, and the title founded thereon is not a merchantable one. Barnes v. Luther, yy Hun, 234, 59 St. Rep. 760, 28 Supp. 400. Where a mortgagee is made a party for the purpose of paying off and discharging the mortgage out of the proceeds of the sale. PARTITION. 235 Art. 14. Final Judgment, its Contents and Effect. the costs of the partition suit should not be deducted from such proceeds before applying them on the mortgage, even though such mortgage covers other land, if the relative values of the different parcels are not shown. Bellcr v. Antisdel, 84 Hun, 252, 32 Supp. 575, 65 St. Rep. 719. A final judgment does not affect the rights and interests of persons not made parties under § 1539. Lcinen v. Elter, ^t, Hun, 249. The authorities cited as to final judgment also relate to judgment of sale under § 1577. A judgment in partition is binding upon all parties though minors or non-residents, if the court acquired jurisdiction of them and of the subject-matter. Clemmens v. Clemmens, 37 N. Y. 59. Contingent remaindermen, or persons who take under an execu- tory devise, and are not in esse, are bound by the judgment in partition as being virtually represented by the parties in interest to the action. Mead v. Mitchell, 17 N. Y. 210. A judgment in partition is conclusive upon all having any interest who are made parties, and conveyances under the sale under the judgment are a bar in law and equity as against all such parties and their representatives. Jenkins v. FaJiey, 73 N. Y. 355. In an action for partition where all the persons in esse having any estate, pres- ent or future, vested or contingent, were made parties defendant and were duly served, the purchaser at the sale under t'he judg- ment acquires a perfect title, and the judgment is conclusive as to the rights of all, and is sufficient to bar the future contingent interests of those not in esse although no notice is published to bring in unknown parties, and though such future owners may take as purchasers under a deed or will, and not as claimants under any parties to the action. Brevoort v. Brevoort, 70 N. Y. 136. But a judgment in partition cannot bind the contingent interest of persons not in esse, unless it provides for and protects such interests by instituting and preserving the proper part of the fund. A judgment in partition is binding upon all the parties, and the decision of the court as to whether the case is a proper one for actual partition or for sale cannot be questioned collater- ally, the judgment is conclusive as to all the matters incident to or essentially connected with the subject-matter which the parties might have litigated and had determined either as matter of claim or of defence. Jordaii v. Van Epps, 85 N. Y. 427. That an actual partition is binding on all the parties, see Chism v. 236 PARTITION. Art. 14. Final Judgment, its Contents and Effect. Keith, I Hun, 589; Brevoort v. Grace, 53 N. Y. 245. A judg- ment and sale does not bar the contingent interest of persons not in esse of whom no notice is taken in the action. Monarque v. Monarqiic, 80 N. Y. 320. Where the court has jurisdiction of the subject-matter and the parties, and appointed guardians ad litem for infant defendants, the partition is conclusive upon the infants and their privies. Wood v. Martin, 66 Barb. 241. The final order of confirmation of sale in a partition suit has the force and effect of a judgment which binds the parties when there is complete jurisdiction, whatever errors or irregularities have pre- ceded it. An omission, from a referee's advertisement of sale, of a portion of the lands embraced in the action, and directed to be sold, does not vitiate a sale by the referee of the omitted por- tion, where, upon motion made, upon notice to all parties in- terested, the sale was confirmed. WoodJiull v. Little, 102 N. Y. 165. In an action to partition the lands of one lately deceased, the purchaser objected to taking title on the ground that the land might be subject to proceedings by the creditors of the decedent, and a deposit of a part of the purchase money was accordingly directed by the court to secure such claims. Held, that it was proper for the court, on denying a motion on behalf of the heirs for leave to withdraw and distribute such fund, to provide that the denial should be without prejudice to an independent action, within a specified time, to which all parties in interest and claim- ants should be made parties. Jordon v. Poillon, 23 Week. Dig. 68. If a decree in an action for the partition and sale of real prop- erty recognizes and protects the interests of remaindermen therein, the interests of the remaindermen are cut off; even if the court erred as to the manner of protecting such remaindermen, the error would be merely an irregularity and would not invalidate the decree. Rockivcll v. Decker, 33 Hun, 343. Where in an action of partition all the necessary parties were before the court, and their rights appeared from the averments of the complaint, there was no defect of parties. DieJil v, Lambart, 9 Civ. Pro. R. 267. Where a farm in which a party owned an undivided twelfth part was partitioned, but the assignee in bankruptcy holding the title of such tenant in common was not a party, held, that the partition was not binding upon the assignee, who could either affirm or disaffirm it, that this was a right which he was bound to exercise within a reasonable time, and a sale by him of the farm PARTITION. 237 Art. 14. Final Judgment, its Contents and Effect. was a disaffirmance. Smith v. Long, 3 Civ. Pro. R. 396. An allotment and conveyance in partition held to inure by way of estoppel in pais against the grantor and privies to a subsequently acquired title. House v. McCormick, 57 N. Y. 310. Judgment and sale can only affect the parties, and if the court has jurisdic- tion and they all desire the sale to be completed the purchaser cannot object. Blakeleyv. Caldcr, 15 N. Y. 617. A purchaser cannot refuse to take title on the ground of the alienage of the father of two brothers, one of whom inherited from the other, and a claim that, therefore, the estate escheated and the people should have been parties. Smith v. Mulligan, 11 Abb. (N. S.) 438. Precedent for Final Judgment in Partition. At a Special Term of the Supreme Court of the State of New York, held at the Court House in the City of Brooklyn on the 23d day of May, 1896. Present — Hon. William J. Gaynor, Justice. SUPREME COURT — Richmond County. Edward Logan, Daniel Logan, Margaret Logan, wife of the said Daniel Logan; Edward Logan, Jr., and John Logan agst. David McConnity, widower; Bridget McConnity, Thomas McConnity, Mary McConnity, Lizzie Mc- Connity, Patrick J. Foley, and Patrick J. Foley as administrator of the goods, chattels and credits of Ellen Logan Foley, deceased. This action having been brought on for hearing upon the plead- ings and proceedings and the report of John J. Kenney, Esq., the referee herein, dated the 17th day of April, 1896, and verified the 23d day of April, 1896, by which it appears that the premises de- scribed in the interlocutory judgment in this action have been sold for the sum of ten thousand five hundred and forty-five dollars ($10,545) and on reading and filing proof of due service of notice of this motion on all the defendants who have appeared, and after hearing William H. Good, Esq., representing Hun & Johnston, Esqs., attorneys for the plaintiffs, Dewitt Stafford, Esq., guardian ad litem for Lizzie McConnity and others, and Cephas Brainerd, Esq., at- torney for Patrick J. Foley, individually and as administrator, etc.. Now, on motion of Hun & Johnston, Esqs., attorneys for the plaintiffs, it is 238 PARTITION. Art. 14. Final Judgment, its Contents and Effect. Adjudged, that said report and the sales therein mentioned be, and the same are hereby, in all things, confirmed, and that said referee execute to the purchasers upon such sales a conveyance of the property sold upon their complying in all respects with the terms upon which the sales were made, as stated in said referee's report. That the said referee first deduct from the proceeds of sale his fees and disbursements; that the said referee pay all taxes, assessments, water rents and inheritance taxes which are liens upon the property sold and redeem the property sold from any sales for unpaid taxes, assessments or water rates which have not, apparently, become absolute, and that the costs and expenses of this proceed- ing, including an additional allowance of $300, which are hereby adjusted according to law at the sum of $614.62, be deducted from the proceeds of such sale, and that said referee pay the same to the plaintiffs' attorneys. It is further ordered and adjudged, that said referee pay to the guardian ad litem of the infant defendants out of the proceeds of such sale the sum of $150 in full of costs and allowance, which is allowed to him for his fees in this action; and that he pay to Cephas Brainerd, Esq., attorney for Patrick J. Foley, individually and as administrator, etc., of Ellen Logan Foley, the sum of $7o,2-5_ for his costs in this action to be taxed; and whereas the referee in this action ascertained the debts due by Ellen Logan Foley at the time of her death, which are specified in his report and in the interlocu- tory judgment herein, and that there was not sufficient personal property to pay the same, and said interlocutory judgment directing that said claims therein specified be paid by the referee out of the proceeds of the sale, it is further ordered that said referee pay the debts of the said Ellen Logan Foley mentioned in the interlocu- tory judgment in this action, and that the premises in said inter- locutory judgment mentioned be sold free from the debts of the said Ellen Logan Foley, and that the conveyance by the referee to the respective purchasers convey the property free from any debt of hers. It is further ordered and adjudged, that the said referee pay and distribute the residue of the proceeds of said sale remaining after paying therefrom the said costs, expenses, taxes and assessments, as follows: One-fourth part thereof to Daniel Logan and Margaret Logan, his wife. One-fourth part thereof to Edward Logan, Jr. One-fourth part thereof to John Logan, and the remaining one- fourth part thereof he deposit in court, by paying the same to the County Treasurer of Richmond County, to be invested for the benefit of Bridget McConnity, Thomas McConnity, Mary McConnity and Lizzie McConnity; that the shares of all the plaintiffs in this action be paid to them and their receipts for the same to be a full satis- faction and discharge to said referee. It is further ordered and adjudged that said purchaser be let into possession of the said property, and that any of the parties to this action who may be in possession of said premises, or any part there- PARTITION. 239 Art. 14. Final Judgment its Contents and Effect. of, and any person who, since the commencement of this action, has come into the possession of said property sold, or any part thereof, dehver possession thereof to such purchaser on production of the referee's deed of said premises. And it is further ordered, that said referee make a report of his proceedings under this judgment. Granted at the Kings County Special Term and ordered certified to Richmond County to be there entered. W. J. G. Precedent for Final Judgment. At a Special Term of the Supreme Court of the State of New York, held at the City Hall in the City of Albany, on the third day of June, 1892. Present — Hon. D. Cady Herrick, Justice. SUPREME COURT — Albany County. JOHN W. McHARG and HARRIETTE D. McHARG, HIS Wife, Plaintiffs agst. RUFUS K. McHARG and Harriet S. McHARG, HIS Wife, and Others, De- fendants. This cause coming on for a final hearing, upon the report of the referee appointed to make a sale of the property sought to be par- titioned in this action, which report bears date on the day of May, 1892, and due notice having been given to the attorneys for parties defendant who have appeared herein, and to the guardians ad litem oi the infant defendants, of this application for the confirma- tion of said report and for final judgment thereupon, and after hear- ing Marcus T. Hun, Esq., on behalf of the plaintiffs, and James Fenimore Cooper, Esq., guardian ad litem for the infant defendant Katharine F. Clarke, and after due deliberation having been had, now, on motion of Marcus T. Hun, Esq., attorney for the plaintiffs' it is Ordered, adjudged and decreed, that said report and the sale therein mentioned be, and the same are hereby in all things con- firmed, and that said referee execute to the purchaser, upon said sale, a conveyance of the property sold, he having complied in all respects with the terms upon which the said sale was made; and that the said referee first deduct from the proceeds of said sale his fees and disbursements to which he is entitled on such sale, and which amount to seventy-seven -^-^ (77t(tV) dollars. That he pay to Marcus T. Hun, Esq., attorney for the plaintiffs, the costs and expenses of the proceedings in this suit, including an additional allowance of five per cent, which are adjusted according to law at 240 PARTITION. Art. 14. Final Judgment, its Contents and Effect. the sum of four hundred and sixty one -f^^ {461 f,f^) dollars. That he pay to James Fenimore Cooper, Esq., guardian ad litem of the infant defendant Katharine F. Clarke, out of the proceeds of such sale the sum of twenty-five (25) dollars for his fees in this action. It is further ordered and adjudged, that said referee, out of the residue of said proceeds of sale remaining after paying the costs and expenses aforesaid, pay and distribute the same as follows: Two twenty-thirds thereof to the plaintiff John W. McHarg; the plaintiff Harriette D. McHarg, wife of the said John W. McHarg, having released her inclioate right of dower in said premises to her said husband. To the defendants Richard P. Marvin, Jr., John M. Wood, Sophia K. Porter, Frances N. Forbes, Katharine N. Cornell, Sarah James Hall, Margaret E. Cassort, Grace Ann Mattocks and Mary E. Goodrich, each one twenty-third part thereof. To the defendant Rufus K. McHarg, one twenty-third part thereof on his obtaining the release of his wife, the defendant Harriet S. McHarg, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Harriet S. McHarg shall not execute such release, then that said referee pay over to her out of said one twenty-third part the sum of eight iu'tj (8-iVo) dollars which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, the balance to said Rufus K. McHarg. To the defendant Charles K. McHarg, one twenty-third part thereof on his obtaining the release of his wife, the defendant Harriet P. McHarg-, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Harriet P. McHarg shall not execute such release, then that said referee pay over to her out of said one twenty-third part the sum of eiglit y'^Jij (SjVu) dollars, which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to said Charles K. McHarg. To the defendant William N. McHarg, one twenty-third part thereof on his obtaining the release of his wife, the defendant Selima S. McHirg, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Selima S. McHarg shall not execute such release, then that said referee pay over to her out of said one twenty-third part the sum of nine ^Vu (91V0) dollars, which is hereby fixed as the proportional value of her said dower right, according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to said William N. McHarg. To the defendant Henry K. McHarg, one twenty-third part thereof on his obtaining the release of his wife, the defendant Fredericka B. McHarg, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Fredericka B. McHarg shall not execute such release, then PARTITION. 241 Art. 14. Final Judgment, in Contents and Effect. that said referee pay over to her out of said one-twenty-third part, the sum of thirteen iVir (i3ro%) dollars, which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to said Henry K. McHarg. To the defendant Franklin Clarke, one twenty-third part thereof on his obtaining the release of his wife, the defendant Louie O. Clarke, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Louie O. Clarke shall not execute such release, then that said referee pay over to her out of said one twenty-third part, the sum of fourteen Vrre (Htds) dollars, which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to said Franklin Clarke. To the defendant Selden E. Marvin, one twenty-third part thereof on his obtaining the release of his wife, the defendant Katharine L. Marvin, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Katharine L. Marvin shall not execute such release, then that said referee pay over to her out of said one twenty-third part, the sum of thirteen tVo (iStV?) dollars, which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to the said Sslden E. Marvin. To the defendant Robert N. Marvin, one twenty-third part thereof on his obtaining the release of his wife, the defendant Elizabeth Marvin, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Elizabeth Marvin shall not execute such release, then that said referee pay over to her out of said one twenty-third part the sum of sixteen -^^^ (i6A^ti) dollars, which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to said Robert N. Marvin. To the defendant David F. Cassort, one twenty-third part thereof on his obtaining the release of his wife, the defendant Flora A. Cas- sort, to him of her inchoate dower interest in said premises, duly executed and acknowledged as required by law; or if said Flora A. Cassort shall not execute such release, then that said referee pay over to her out of said one twenty-third part, the sum of fifteen f^i, (i5TT?ti) dollars, which is hereby fixed as the proportional value of her said dower right according to the principles of law applicable to annuities and survivorships, in full discharge of her said dower right, and the balance to said David F. Cassort. That the said referee pay into the surrogate's court of the County of Chautauqua one twenty-third part thereof, to be there distributed under the last will and testament of Robert Newland, deceased; and that the said referee bring into court to be invested in perma- nent securities at interest, in their names and for their benefit, [Special Actions — 16.] 242 PARTITION. Art. 14. Final Judgment, its Contents and Effect. the remaining three one twenty-third parts thereof of said residue to which the infant defendants Katharine F. Clarke, Isabella Marvin and Maud Marvin are entitled, by paying over the same to the County Treasurer of Albany County. It is further ordered and adjudged, that said referee take receipts for the amounts so paid by him, and file them with his report to be made subsequent hereto, and It is further ordered and adjudged, that the said purchaser be let into possession of the said property, and that any of the parties to this action who may be in possession of said premises or any part thereof, and any person who since the commencement of this action has come into the possession of said property sold or any part thereof, deliver possession thereof to such purchaser on production of the referee's deed of said premises. It is further ordered that the said referee make a report of his proceedings under this judgment. It is further ordered, adjudged, and decreed, that the plaintiff John W. McHarg be and he is hereby discharged from all liability and accountability for any rents received by him from said premises since the death of Jane Barker. The following is a description of the property sold: (Insert description.) D. CADY HERRICK, Jus. Sup. Ct. Sub. 2. Distribution of Proceeds of Sale. §§ 1580, 1581. § 1580. Distribution of proceeds. The proceeds of a sale, after deducting therefrom the costs and expenses chargeable against them, must be awarded to the parties whose rights and in- terests have been sold, in proportion thereto. The sum chargeable upon any share, to satisfy a lien thereon, must be paid to the creditor, or retained, subject to the order of the court ; and the remainder, except as otherwise prescribed in this article, must be paid, by the officer making the sale, to the party own- ing the share, or his legal representatives, or into court for his use. § 1581. [Am'd, 1892.] Shares of infants. Where a party entitled to receive a portion of the proceeds is an infant, the court may direct it to be invested in permanent securities at interest in the name and for the benefit of the infant, or it may direct it paid over to the general guardian of the said infant when the guardian shall have executed to such in- fant a bond with two sureties which shall be approved by the court, or if any of the moneys arising from the proceeds of such sale shall have been paid to the county treasurer, and on due proof that such money has remained uninvested in permanent securities for the space of three months, may direct the same to be paid to the general guardian of such infant upon his giving an undertaking in an amount and with sureties, satisfactory to the court for the faithful execution of his trust. The precedents given under Sub. i of this article immediately preceding, contain full and explicit directions for distribution of the fund. PARTITION. 243 Art. 14. Final Judgment, its Contents and Effect. Where a widow makes no claim for dower within one year, her election to accept the provisions of her husband's will in lieu thereof becomes fixed and settled, and cannot be affected by a subsequent incorrect claim in an action for partition that he devised all his real estate to her, and in case of her death before a sale, her administrator is entitled to the proceeds of the interest so devised, Duffy v. Duffy, 53 St. Rep. 758; S. C. 70 Hun, 135. A judgment directing a sale thereunder in an action in parti- tion brought by remaindermen, while there was an existing life estate, is not void, the court having jurisdiction of the subject of the action and the parties to it. Prior \. Prior, 15 Civ. Pro. R. 436. The provisions of § 1582, as amended by Chapter 39, Laws of 1889, authorizing a special term in an action of partition, to dis- pose of certain unclaimed proceeds, were held to be unconstitu- tional as authorizing the court to divest unknown heirs who may exist and are not presumed to be dead, and vest other and differ- ent persons with such funds, and thus deprive persons of their property without due process of law. People ex rcl. Miller v. Rider, 124 N. Y. 500, 36 St. Rep. 468, reversing 58 Hun, 407, 34 St. Rep. 322. This decision was made in March, 1891. It will be noted that this section was amended by Laws of 1891, page 709. The same case came up and was disposed of, 65 Hun, 175, upon the Code as it then stood, and another amendment was made 1893. Where a decree in partition directs a third of the proceeds of the sale to be invested for the benefit of the widow, and that upon her death it be divided into as many parts as there are heirs and paid to the heirs respectively by name, if any of the heirs die in the lifetime of the widow, their executors or administrators and not their heirs, as such, are entitled to receive the respective shares of those so dying. Robinson v. McGregor, 16 Barb. 531. Where an undivided share of real estate was devised to a hus- band in trust for his wife during her natural life, and after her death to her heirs forever, subject to a life estate to her husband after the death of the wife, it was held that the proceeds must be paid into court. Noble v.CromzvelL 6 Abb. 59, affirmed, 27 How. 289, (Ct. of App.) See Mead v. Mitchell, 5 Abb. 92. Where a judgment in partition directs the referee, on selling, to pay off taxes and assessments, which are liens upon property, 244 PARTITION, Art. 14. Final Judgment, its Contents and Effect. before making distribution of the proceeds of sale, the purchaser, who is subsequently obliged to pay such liens, is not confined to an action, but may move in the partition suit to compel the referee to pay; Wcscinan v. IVingrove, 85 N. Y. 353; the ques- tion as to the distribution of the proceeds of sale of any undi- vided share of the premises, between owner and incumbrancer, is collateral to the main purpose of the action ; the court having jurisdiction of the fund adjudges how distribution shall be made. Halstcdv. Halstcd, 55 N. Y. 442. The rule that in equitable actions the court is not restricted to the mere remedy demanded, and will adjust all the equities, applied where an action was brought for partition of a testatrix's realty among her heirs-at-law, and a creditor for services rendered her, who was a party, set up that there was no personal estate to pay his claim, and asked that it be paid out of the proceeds, the court holding that there was no lien, as the judgment had been recovered against the executor, and not the testatrix in her life- time, found that, by her will, she had charged her debts on her real estate. Hibbard v. Dayton, 32 Hun, 220. After sale in partition, a referee was appointed to take proof of the rights and interests of the respective parties and claimants in the fund. It was held that only those parties who filed excep- tions to the referee's report could appeal to the Court of Appeals. A judgment against an executor for debt due from the ancestor is not a lien, either at law or in equity, upon shares of real estate conveyed or devised, and such shares cannot be charged with its payment. Citing SJiarpc v. Freeman, 45 N. Y. 802 ; Dodge v. Stevens, 94 N. Y. 209. It seems that the debts of a decedent can only be ordered paid out of his real estate, or by his heirs or devisees, in the manner provided by statute. Piatt v. Piatt, 105 N. Y. 488. It was subsequently held at General Term in the same case that the court had power in the action of partition to adjust the rights of the parties, and charge any person's share who was a party with an amount due the other parties — it appearing that justice and equity required such adjustment. Piatt v. Piatt, 15 St. Rep. 285. Where a dispute arises as to title to the funds arising on sale, which has been deposited with the county treasurer, it seems that such dispute must be settled by action and not by an order in partition suit. Matter of Castle, 2 St. Rep. 362. PARTITION. 245 Art. 14. Final Judgment, its Contents and Effect. Before a party is entitled to receive his share of the proceeds of the sale he must extinguish liens he may have against the prop- erty. Evarts v. Woods, 25 St. Rep, 498. And the heir may be required to pay any indebtedness he owes the estate out of his share. Piatt v. Piatt, 15 St. Rep. 285. Where a mortgage held by one of the defendants has been declared void in an action of foreclosure no portion of the pro- ceeds of the sale should be held to meet its payment. Foster v. Roche, 4 N. Y. Supp. 605, s. c. 21 St. Rep. 748. Where real estate owned by tenants in common, one of whom was an infant, is sold under judgment in partition, the portion of the proceeds belonging to the infant remains impressed with the character of real estate. Morton v. McCoy, 47 N. Y. 21. Where the interlocutory judgment provides for a gross sum in satisfaction of a tenancy by the curtesy, and the life tenant dies before the sale, the proceeds should not be charged with the sup- posed value of such life ; the Special Term has power to correct judgment so as to conform it to the new state of facts. Miiigay V. Lackey^ 142 N. Y. 449, 60 St. Rep. 98, affirming 74 Hun, 89, 57 St. Rep. 270, 26 Supp. 161. Where an application is made to a court by an attorney in fact for payment of the share of a party in the proceeds of the sale, it is prudent to obtain the sanction of the court to such payment, and when no doubt is shown as to the authenticity of the power of attorney, payment should be direct to him, and the order directing payment to the chamberlain under such circum- stances is improper. LytJigoe v. Smith, 140 N. Y. z^.2, 55 St. Rep. 828. Where no order has been made as to the investment of the shares of infants, and the chamberlain has invested them with other funds in securities of large amount, but is prepared to sub- stitute other moneys in their place, there is no permanent invest- ment as required by § 1581, and the court then has power to direct their payment to the general guardian. T/uirstoJi v. Wil- bur Trust Co. 7 Misc. 392, 57 St. Rep. 561, 27 Supp. 923. Where final judgment directs the shares of infants to be paid into court to be invested in permanent securities for their benefit, and such investment has been made by the chamberlain, the court cannot thereafter direct such shares to be paid to the general guardian of the infants. Flynn v. Lynch, 23 Civ. Pro. R. 369. 246 PARTITION. Art. 14. Final Judgment, its Contents and Effect. A judgment is irregular which provides that the share of a party in the proceeds of sale shall be paid to the party or his attorney. Section 1580 directs the costs alone are to be paid to the attorney and the shares of the proceeds of the sale to the parties. McKenna v. Duffy, 64 Hun, 597. Report of Distribution. SUPREME COURT. AMASA HUMPHREY agst. EGLIN HORNBECK et al. To the Supreme Court of the State of New York : In pursuance of a judgment made in the above-entitled cause, on the 12th day of January, 1884, I, the subscriber, referee named in the said judgment, do respectfully report as follows: That in obedience to the said judgment, I have executed, acknowledged and delivered to Levi H. Dunn, the purchaser of the premises directed to be sold by me, a deed of said premises on receiving from him the sum of $3,320, the price or sum for which the said premises were sold to him as mentioned in my former report of such sale, made in pursuance of the said judgment, and bear- ing date the 14th day of March, 1884, and upon his complying with all the conditions upon which the said deed was to be delivered. And I further report that I have paid Everett Fowler, the attorney for the plaintiff in this cause, the sum of $393.28 for the costs of the plaintiff in this suit as taxed, and have taken a receipt therefor, which is hereto annexed. And that I have paid to William S. Kenyon, Jr., the sum of $55 for his costs and disbursements herein, as directed by the said judg- ment, and have taken his receipt therefor, which is hereto annexed. And that I have retained in my hands the sum of $91, being the amount of my fees, commissions and disbursements on said sale. And I further report that the defendant Eglin Hornbeck, being willing to accept in lieu of her dower interest in the said premxises a sum, in gross, in satisfaction thereof, out of the "net proceeds of the said premises, I have paid to her the sum of $542, fixed by the court according to the principles of law applicable to annuities in satisfac- tion of her dower right, title and interest of, in and to the said premises, and have taken from her a release, duly executed, of all her dower right, title and interest of, in and to the said premises which release and the consent to accept such gross sum are hereto annexed. And I do further report that the defendant Eglin Hornbeck, being willing to accept the sum of S218.17, in full, for her life estate in the interest of an infant daughter of Joseph K. Hornbeck, de- PARTITION. 247 Art. 14. Final Judgment, its Contents and Effect. ceased, who died since the said Joseph K. Hornbeck, in the said premises, I have paid the said sum of $218.17 to her, and have taken her release, duly executed and acknowledged, of her said life estate, which said release and her consent to accept such gross sum are hereto annexed. And I do further report that the residue of the net proceeds of the sale of the said premises, after deducting the payments and sums above mentioned, have been paid by me, as directed by the said judgment, as follows: I have paid to the plaintiff, Amasa Humphrey, the sum of $403.94 and have taken his receipt therefor, which is hereto annexed, together with the release and request of his wife, the defendant Rebecca Humphrey, that her inchoate right of dower in the prop- erty sold be paid to him, which release and request of the said Rebecca Humphrey is hereunto annexed. I have paid to John A. Baker the sum of $403.94, the amount directed to be paid to him by the decree herein, on his producing a deed of the interest of the defendant Bianca Osterhoudt in the said premises and recording the same, he having produced the said deed and placed the same on record in the Ulster County Clerk's office, and have taken his receipt therefor, which is hereto annexed. And I have paid to the treasurer of the County of Ulster the balance of the said fund, to wit: $1,211.82, being for the share of the infant defendants George K. Hornbeck, Amelia Hornbeck and Mary A. Hornbeck, that is to say, the sum of $403.94 for the share of each one of the said infant defendants, and I have taken the receipt of the said county treasurer therefor, which is also hereto annexed. And I further report that I have let the said Levi H. Dunn into the possession of the premises so purchased by him. All of which is respectfully submitted. Dated May 2, 1884. JAMES S. McPHERSON, Referee. (Title as before.) This is to certify that I have received from James S. McPherson, the referee who made the sale of the premises described in the com- plaint and judgment in this action, the sum of $403.94 as and for the proceeds of the sale of the said premises sold herein, and directed to be paid over to me by the decree herein as and for the share of George K. Hornbeck. (Same as to any other shares received.) In witness whereof, I have hereunto set my hand and seal this [L. S.] May 2, 1884. JOHN DERRENBACHER, County Treasurer (Title as before.) Dated May 4, 1888. Received from James S. McPherson, the referee who made sale in this matter, the sum of $393.28, being amount of our costs and dis- bursements as taxed and directed paid me in final judgment. EVERETT FOWLER. 248 PARTITION. Art. 14. Final Judgment, its Contents and Effect. (Title as before.) May 4, 1888. Received from James S. McPherson, referee, who made sale in this action, the sum of $403.94, being amount directed paid me by decree, as my share of the proceeds of the real estate sold in this action. AMASA HUMPHREY. [L. S.] Precedent for Order Confirming Report of Distribution. (Caption, usual form.) SUPREME COURT. JAMES V. BRUYN agst. CORNELIUS BRUYN et al. On reading and filing the report of James A. Betts, referee duly appointed by an order of this court entered June 30, 1888, by which report it appears that the said referee has executed, acknowledged and delivered to Albert L. Roe, the purchaser of the premises sold by said referee, a deed thereof, and that he has distributed the pro- ceeds of the sale of the said premises in the manner directed by the order of the court, and that the said referee has annexed to his re- port the receipts of the several persons to whom the said proceeds were required to be paid: Now, on motion of C. A. & E. Fowler, at- torneys for the plaintiff, it is ordered that the said report be, and the same hereby is, approved and confirmed. SAMUEL EDWARDS, J. S. C. Precedent for Petition to Draw Money Out of Court when Infant has become of Age. SUPREME COURT. WILLIAM H. WYNKOOP agst. SUSAN MARIA WYNKOOP, ISABELLA WYNKOOP AND OTHERS. To the Supreme Court of the State of New York : The petition of Isabella Wynkoop, one of the above-named de- fendants, respectfully shows to the court: First. That she is one of the above-named defendants in the above-entitled action, and became of the age of twenty-one years on the i6th day of October, 1887. PARTITION. 249 Art. 14. Final Judgment, its Contents and Effect. Second. That on or about the loth day of March, 1885, an action was brought by the above-named plaintiff against the above-named defendant for the partition of certain premises situated in Ulster County, N. Y. ; that such proceedings were had therein, that on or about the 24th day of April, 1886, judgment of sale was entered therein, wherein and whereby it was, among other things, decreed that the sum of $2,000, being one-third of the balance to be dis- tributed as and for the share of said Isabella Wynkoop, infant, in said real property, be paid to the general guardian of said Isabella Wynkoop, or that the same be paid to the county treasurer of Ulster County for the use and benefit of said infant, Isabella Wynkoop; that the said $2,000 were accordingly paid to the said county treasurer. Wherefore your petitioner prays that an order may be granted ordering the county treasurer of Ulster County to pay the said sum of $2,000, with all accumulations of interest thereon, to your petitioner, Isabella Wynkoop, or to her attorneys, John E. Van Etten & Son, of the City of Kingston, said County of Ulster. ISABELLA WYNKOOP. {Add verification as to pleading.) Precedent for Affidavit as to Age of Applicant. SUPREME COURT. WILLIAM H. WYNKOOP agsL SUSAN MARIA WYNKOOP, ISABELLA WYNKOOP AND Others. Ulster County, ss. : Catherine Wynkoop, of said County of Ulster, being duly sworn, deposes and says that she is the mother of Isabella Wynkoop, the above defendant; that said Isabella became of the age of twenty-one years on the i6th day of October, 1887. (Jurat.) CATHERINE WYNKOOP. Precedent for Certificate of County Treasurer Showing Amount on Deposit. SUPREME COURT. (Title.) I certify that there is in my hands and now deposited in the Ron- dout Savings Bank to the credit of Isabella Wynkoop the sum of $2,015.25, being the principal sum and interest thereon to July i, 1887. Dated November 23, 1887. JOHN DERRENBACHER, County Treasurer. 250 I'ARTiTlUN. Art. 14. Final Judgment, its Contents and Effect. Precedent for Order to Draw Money out of Court. At a Special Term of the Supreme Court, held in and for the County of Ulster at the court house in the City of Kingston on the 25th day of November, 1887. Present — Hon. Alton B. Parker, Justice. WILLIAM H. WYNKOOP agst. SUSAN MARIA WYNKOOP, MARY J. WYNKOOP AND ISABELLA WYNKOOP. On reading and filing the petition of Isabella Wynkoop, verified November 25, 1887, and the affidavit of Catherine Wynkoop, duly verified November 25, 1887, and the certificate of the county treas- urer of Ulster County, also duly filed, and satisfactory proof having been made of the facts set forth in such application. Now, on motion of John E. Van Etten, attorney for said petitioner, it is ordered that the county treasurer pay to Isabella Wynkoop, 01 to her attorney, the sum of $2,015.25, now in his hands, to the credit of the said Isabella Wynkoop in the above action, and take a receipt for the same. ALTON B. PARKER, Justice Supreme Court. Sub. 3. Rents may be Adjusted. § 1589. § 1589. Rents, etc., may be adjusted. Nothing contained in tliis article prevents the court from adjusting, in the in- terlocutory or final judgment, or otherwise, as the case requires, the rights of one or more of the parties, as against anj^ other party or parties, by reason of the receipt, by the latter, of more than his or their proper proportion of the rents or profits of a share, or part of a share. In an action between parties claiming title to land under a will, the court will order an accounting and dispose of all questions between the parties in relation to the land or its use and afford complete relief. Scott v. Guernsey, 60 Barb. 163, affirmed, 48 N. Y. 106. The law seems to be settled where one tenant in common col- lects and appropriates the rent belonging to his co-tenant, the latter shall have a lien upon the interest or share of the person collecting and appropriating it for his reimbursement. Kmgsland v. Chctivood, 39 Hun, 602; citing Hannan v. Osborn, 4 Paige, 336, and Scott v. Guernsey, 60 Barb. 163, supra. In Wright v. Wright, 59 PARTITION. 251 Art. 14. Final Judgment, its Contents and Effect. How. 177, it is held that one co-tenant can recover from another his share of the rents received by his co-tenant. In an action for partition of lands on which there is a stone quarry, a tenant in common, who is made a defendant, may set up in his answer that the plaintiff has been in the sole possession of the premises, collected the rents thereof, and quarried and sold stone there- from, and may require an account to be rendered of the moneys .so received by the plaintiff, and have an allowance made to him- self therefor. McCabe V. McCabe, 18 Hun, 153. That rents are not recoverable in an action of partition is held in Burhans v. Burha7is, 2 Barb. Ch. 398; it is distinguished in 18 Hun, 153, supra, by reason of the land being held adversely. Bulen v. Bur- dcll, II Abb. 381, is also distinguished in same case. One of several tenants in common, who possesses the entire premises without any agreement with the others as to his posses- sion, or any demand on his part to be allowed to enjoy the premi- ses with him, is not liable to account to them in an action brought by the co-tenants for the use and occupation of the premi- ses. Woolevcr v. Knapp, 18 Barb. 265. One tenant in common, although he have the exclusive possession of the common prop- erty, is not liable to account to the other tenants in common either for rent or for a share of profits unless there be an express agreement that he shall do so. Where a married woman is a tenant in common with others, of property occupied by her and her husband, his occupation being that of his wife, no action will lie against him by the other tenants in common for rent, without proof of an agreement to pay it. Wilcox v. Wilcox, 48 Barb. 327. Where one tenant in common takes from his co-tenant a lease of the premises held in common for a term of years, and after the expiration of the term continues in possession without a new express agreement, or any claim by him to be exclusively entitled to the possession, or any act done to prevent a joint occupation by his co-tenant, the latter cannot recover of him for the use and occupation of the premises after the close of the term. Dresser v. Dresser, 40 Barb. 300. The rule is stated in Joslyn v. Joslyn, 9 Hun, 389, an action for an account, to be that the right of a recovery of a tenant against his co-tenant for receiving more than his share of the rents and profits of land, is limited to the proportional share of the net amount actually received, and no recovery can be had for what a 252 PARTITION. Art. 14. Final Judgment, its Contents and Effect. co-tenant, who is himself in possession of the land, takes there- from and applies to his own use. Where a co-tenant, in such a case, rents a portion thereof and occupies the remainder, it rests upon the party bringing the suit to show the net amount of rent received by the defendant from his tenant, and in the absence of all proof on the subject there is no proof that the amount thereof is equal to the whole annual value of the premises held in com- mon. The statement in Rosebooni v. Roseboom, 15 Hun, 315, is tersely, that the tenant in common is liable to account only for what he receives, not for what he takes. Where an order was made authorizing a receiver to rent the premises pendente lite, to one of the defendants, it was enforced by the court, and the pro- ceeds coming to defendant applied thereon. Fisher v. Hersey, 85 N. Y. 633. See Ford v. Knapp, 102 N. Y. 133. One tenant in common who receives no money or property from the premises owned in common by himself and others, but simply occupies them himself, is not liable to his co-tenant for the value of the use of the property so occupied by him. Section 1589 does not create any greater liability as against party in pos- session to account for rents and profits while he may be only in their actual occupancy, than existed prior to the enactment of that section of the Code. {Scott v. Guernsey, 48 N. Y. 106, is not followed.) Rich v. Rich, 50 Hun, 199. But where the tenant in possession has recognized the title of a receiver by joining with him in the execution of a lease in which she agrees to pay rental, such rental may be recovered. Smith V. Lavelle, 13 Misc. 528. Sub. 4. Costs. § 1579. § 1579. Costs and expenses ; how paid. Where final judgment, confirming a sale, is rendered, the costs of each party to the action, and the expenses of the sale, including the officer's fees, must be deducted from the proceeds of the sale, and each party's costs must be paid to his attorney. But the court may, in its discretion, direct that the costs and ex- penses of any trial, reference, or other proceeding in the action, be paid out of the share of any party in the proceeds, or may render judgment against any party therefor. Where a proportion of the proceeds is to be paid to, or invested for the benefit of any person, as prescribed in any provision of this article, the amount thereof must be determined by the residue of the entire proceeds, re- maining after deducting the costs and expenses chargeable against them. Costs in partition are in the discretion of the court. Austin v. Ahearne, 61 N. Y. 6. The court has power to award costs paya- PARTITION. 253 Art. 14. Final Judgment, its Contents and Effect. ble out of the proceeds of the sale. Henderson v. Scott, 93 Hun, 22. A plaintiff recovering in an action of partition is entitled to costs of course under § 3228, and neither court or referee has any discretion as to costs, nor can any portion of defendant's costs be charged upon plaintiff, but under section 1559 the defendant is only liable for so much of plaintiff's costs as is proportioned to the interest of such defendant in the real estate partitioned. Davis V. Davis, 3 St. Rep. 163. The action of partition is one of those in which the plaintiff is entitled to a percentage under § 3252. It is usual also to make an allowance under § 3253. Where the parties on each side of an action prove to be successful, the court has power to award ad- ditional allowances to each, not exceeding $4,000 in the aggregate, and it is queried whether an action of partition is such an action. It seems it might be made where a sale is had, but not where an actual partition is made. Weed v. Paine, t,i Hun, 10. The power of the court to award to the guardian of an infant, to be paid out of the subject-matter of an action, such compensation as appears to be reasonable for the services he has performed, is inherent in it and does not depend on the Code of Civil Procedure, nor is it limited by it. Weed v. Paine, 31 Hun, 10. In Gott V. Cook, 7 Paige, 521, and Union Ins. Co. v. Van Rensse- laer, 4 Paige, 85, it is held that special circumstances must exist to allow a guardian ad litem more than taxable costs out of a fund to which others are entitled. Where an extra allowance is made in a decree for partition and sale, a further extra allowance cannot be made in the same action on the granting of a decree confirming the sale and directing distribution of the proceeds. Brewer v. Brewer, 11 Hun, 147, af^rmed, as Brezver v. Penniman, 72 N. Y. 603, without opinion. Where a sale is ordered, plaintiff's application for additional costs should be postponed until final judgment. Saffron v. Saff- ron, 1 1 St. Rep. 471. Where respondents were defeated on all the issues, but the ref- eree held they were entitled to taxable costs to be adjusted, but that such costs could not embrace costs of either trial or appeal, the judgment on the first trial having been reversed with costs to abide the event, and the clerk taxed costs for respondent including costs of two trials and of the appeal, it was held error. Shannon v. Pickell, 40 St. Rep. 559. 254 PARTITION. Art. 14. Final Judgment, its Contents and Effect. Costs in an action of partition are in the discretion of the court, and the fact that an issue of fact in the action is triable by jury, does not change that rule. Weston v. Stoddard, 42 St. Rep. 76. Where final judgment confirming a sale is rendered under sec- tion 1579, each party to the action has the right to have his costs paid to his attorneys out of the proceeds of the sale, except those costs which by the second clause of the section are within the discretion of the court. Allen v. Allen, 11 Supp. 470. On final judgment confirming a sale, each party has the right to have his costs paid to his attorneys out of the proceeds of the sale, except those costs which are in the discretion of the court. Allc7i V, Allen, 11 St. Rep. 470. Where all the issues are found in plaintiff's favor, defendant is not entitled to costs proportioned among the defendants and the judgment may provide that the costs charged against such defend- ant be set off against her interest. Stephenson v. Cotter, 5 Supp. 749- In an action of partition the right to recover costs is to be de- termined by the final judgment, and until such judgment has been recovered, no order for the payment of costs and disbursements should be made. An order, therefore, made after an interlocu- tory judgment and before a determination of the persons entitled to the property, or their rights or interests therein, directing the payment, by a receiver of rents and profits, of certain disburse- ments incurred therein, is improper. Weeks v. Cormvell, 38 Hun, 577. The costs should be charged upon the parties according to their respective rights and interests in the premises. Tibbitts v. Tibbitts, 7 Paige, 204; and the plaintiff's attorney acquires a lien for his fees and disbursements upon the plaintiff's share, which he can- not be divested of by assignment of that share. Creighton v. Ingersoll, 20 Barb. 541. Where the premises were sold to one of the defendants for a less sum than he was entitled to receive for improvements he had made upon them, it was held proper to direct such purchaser to pay the costs out of such fund and re- tain the balance without paying it over to the referee. Hender- son V. Scott, 43 Hun, 22. PARTITION. 255 Art. 15. Application for Moneys Paid into Court. ARTICLE XV. Application for Moneys Paid Into Court. §§ 1564, 1565, 1566. Rule 69. § 1564. Application for money. Where money is paid into court, in a case specified in the last section, the party may apply to the court for an order directing that the money, or such part thereof as he claims, be paid to him. Upon such an application he must pro- duce the following papers : r. An affidavit, made by himself, or, if a sufficient excuse is shown, by his agent or attorney, stating the true amount actually due on each incumbrance, and the name and residence of the owner of the incumbrance, as far as they are known, or can be ascertained with due diligence. 2. An affidavit, showing service of a notice of the application upon each owner of an incumbrance. Service of the notice, within the State, must be personal, or by leaving it at the owner's residence, with some person of suitable age and discretion, at least fourteen days previous to the application. Service, without the State, if personal, must be made at least twenty days previous to the applica- tion. If the owner of the incumbrance resides without the State, and the place of his abode cannot be ascertained, with reasonable diligence, notice may be served upon him by publishing it in the newspaper printed at Albany, in which legal notices are required to be published, once in each week for the four weeks immediately preceding the application. Upon the application, the court must make such an order as justice requires. § 1565. Payment of incumbrances. When the whole amount of the unsatisfied liens upon an undivided share, which were existing at the date of the order of reference, has been ascertained, the court must order the portion of the money so paid into court, on account of that share, to be distributed among the creditors having the liens, according to the priority of each of them. Where the incumbrancer is not a party to the ac- tion, the clerk or other officer, by whom a lien is paid off, must procure satisfac- tion thereof to be acknowledged or proved, as required by law, and must cause the incumbrance to be duly satisfied or canceled of record. The expense of so doing must be paid out of the portion of the money in court, belonging to the party, by whom the incumbrance was payable. § 1566. Other parties not to be delayed. The proceedings to ascertain and settle the liens upon an undivided share, as prescribed in the last three sections, shall not affect any other party to the ac- tion, or delay the paying over or investing of money, to or for the benefit of any other party, upon whose share or interest in the property there does not appear to be any existing lien. Rule 69. Order for payment out of court, what to specify, etc. Orders upon the banks or other companies for the payment of moneys out of court shall be made to the order of the person entitled thereto, or of his attorney duly authorized, and shall specify in what particular suit or on what account the money is to be paid out, and the time when the order authorizing such payment was made. No order in any pending action, for the payment of money out of •56 PARTITION. Art. 15. Application for Moneys Paid into Court. court, shall be made, except on regular notice or order to show cause, duly served on the attorneys of all the parties who have appeared therein or filed notice of claim thereto. When moneys are deposited by the order of the court in any trust company, the entry of such deposit in the books of the company shall contain a short reference to the title of the cause or matter in which such deposit is directed to be made, and specifying also the time from which the interest or accumulation on such deposit is to commence, where it does not commence from the date of such deposit. The secretary of the company shall transmit to the Appellate Division of the Supreme Court in the department in which the trust company is located in each place a statement of the accounts in each depart- ment, showing the amount, on the first day of January, including the interest or accumulation on the sum deposited to the credit of each cause or matter. In every draft upon the trust company by the county treasurer or chamber- lain, for moneys deposited with the said company, or for interest or accumula- tion on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing such draft, shall be stated, and the draft shall be made payable to the order of the person or persons entitled to the money, or of his or their attorney, who is named in the order of the court authorizing such draft. Any attorney or other person procuring an order for the payment of money out of court, shall obtain two certified copies of the order, both to be countersigned by the judge granting the same; one copy shall be filed with the county treasurer and the other shall accompany the draft drawn upon the depository and be filed with it, and the several banks and other depositories having trust funds of the court on deposit, are forbidden to pay out any such funds without the production and filing of such certified and counter- signed copy order. This provision is not intended to dispense with any of the requirements of this rule, as to the form of the draft, nor to apply to a case where periodical payments are directed to be made, as provided for by the last sentence of said rule, after the first payment from such fund shall have been made under an order of the court, in the manner herein specified. Where periodical payments are directed to be made out of a fund deposited with such company, the delivery to the secretary of the company of one copy of the order authorizing the several payments shall be sufficient to authorize the payment of subsequent drafts in pursuance of such order. Precedent for Affidavit on Application to Draw Money Out of Court. SUPREME COURT. JOHN HASKINS agst. MARY HASKINS, JAMES C. HASKINS AND LOISA M. DURYEA. Ulster County, ^-.y.; James C. Haskins, being duly sworn, says that he is one of the defendants above named ; that this action was brought for the par- PARTITIOX. 257 Art. 16. Actual Partition. tition of real estate, situated in the County of Ulster, and owned by the parties hereto as tenants in common; and the share or interest of deponent in said real estate was the undivided one-fourth part; that, as deponent is informed and believes, such proceedings were had in said cause, that the said real estate was sold by and under an interlocutory judgment herein, and the share or portion of the purchase-money belonging to deponent, which, after deducting the costs and charges to which it was liable, amounted to $2,300, was ordered to be brought into court and paid to the treasurer of Ulster County, and said sum is now in the possession of said treasurer, and said sale was duly confirmed ; that said share of deponent in said real estate was incumbered at the time of said sale by a judg- ment in favor of John Harley, of the City of Kingston, said county, against deponent, which judgment was docketed in the clerk's office of Ulster County, on the 23d day of March, 1883; that the said judgment is now owned by the said John Harley, who resides at No. 20 Fair street, said City of Kingston, and the true amount now actually due on the said judgment is the sum of $1,124.32, with interest from the 23d day of March, 1883, and that there is no other incumbrance chargeable upon the share of deponent as aforesaid, as he verily be- lieves. (Jurat.) JAMES C. HASKINS. ARTICLE XVI. Actual Partition. §§ 1 547-1 560, 1587. Sub. I. Partial partition, whei\ made. §§ 1547, 1548. 2. Interlocutory judgment for actual p.\rtition; powers and duties of commissioners. §§ 1549, i550, 1551, 1552, 1553. 3. Report of commissioners and confirmation of report. §§ 1554, 1555, 1556- 4. Final judgment FOR ACTUAL PARTITION. §§ 1557, 155S, 1559, 1560. 5. Compensation for equality of partition. § 1587. Sub. I. Partial Partition, when Made. §§ 1547, 1548. § 1547. Partial partition; when made. Where the right, share, and interest of a party has been ascertained and determined, and the rights, shares, or interests of the other parties, as between themselves, remain unascertained or undetermined, an interlocutory judgment for a partition, entered as prescribed in the last section, must direct a partition, as between the party whose share has been so determined and the other parties to the action. Where the rights, shares, and interests of two or more parties have been thus ascertained and determined, the interlocutory judgment may also direct the partition among them of a part of the property, proportionate to their aggregate shares. In either case, the court may, from time to time, as the other rights, shares, and interests are ascertained and determined, render an interlocutory judgment, directing the partition, in like manner, of the remainder of the property. Where an interlocutory judgment is rendered, in a case speci- fied in this section, the court may direct the action to be severed, and final judgment to be rendered, with respect to the portion of the property set apart to [Special Actions — 17.] 258 PARTITION. Art. 16. Actual Partition. the parties, whose rights, shares, and interests are determined, leaving the action to proceed as against the other parties, with respect to the remainder of the property; and, if necessary, the court may direct that one of those parties be substitutec( as plaintiff. ^ 1548. Shares may bo set oflf in common. Where two or more parties, to an action for partition, make it appear to the court, that they desire to enjoy their shares in common with each other, the interlocutory judgment may, in the discretion of the court, direct partition to be so made, as to set off to them their shares of the real property partitioned, with- out partition as between themselves, to be held by them in common. A referee was formerly appointed to .set off .shares of those who desired to remain without partition. NortJiriip v. Anderson^ 8 How. 351. There may be actual partition between all the plaintiffs on one hand and all the defendants on the other. U^altcr v. Walter,. 3 Abb. N. C. 12. Partition was ordered where the right of one defendant to an undivided moiety was admitted, but interests in the other half being disputed, were left to be litigated ; Phelps v. Green, 3 Johns. Ch. 302; and part of the lands were secured to some of the parties by reason of prior equities, and some sold. War field v. Crane, 4 Abb. Ct. of App. Dec. 525. One tenant may have his share set off to him while that of the others is sold. Haywood v. Jndsoji, 4 Barb. 228. As to the control of the court over the question of costs, see Henderson v. Seott, 43 Hun, 22, and cases cited. Sub. 2. Interlocutory Judgment for Actual Partition ; Powers and Duties of Commissioners. §§ 1549-1553. g 1549. Appointment of commissioners. Where the interlocutory judgment, in an action for partition, directs a parti- tion, it must designate three reputable and disinterested freeholders as commis- sioners, to make the partition so directed. ij 1550. Commissioners to be sworn, etc. Each of the commissioners must, before entering upon the execution of his duties, subscribe and take an oath before an officer specified in section 842 of this act, to the effect that he will faithfully, honestly and impartially discharge the trust reposed in him. Each commissioner's oath must be filed with the clerk before he enters upon the execution of his duties. The court may, at any time, remove either of the commissioners. If either of them dies, resigns, neglects or refuses to serve, or is removed, the court may, from time to time, by order, appoint another person in his place. § 1551. Id.; vrhen to make partition. The commissioners must forthwith proceed to make partition, as directed by the interlocutory judgment, unless it appears to them, or a majority of them, that partition thereof, or of a particular lot, tract, or other portion thereof, can- PARTITION. 259 Art. 16. Actual Partition. not be made, without great prejudice to the owners; in which case, they must make a written report of that fact to the court. g 1552. Partition; hew made. In making the partition, the commissioners must divide the property into dis- tinct parcels, and allot the several parcels thereof to the respective parties, quality and quantity being relatively considered, according to the respective rights and interests of the parties, as fixed by the interlocutory judgment. They must designate the several parcels by posts, stones, or other permanent monu- ments. They may employ a surveyor, with the necessary assistants, to aid them in so doing. § 1553. Provision where there i.s a particular estate. Where a party has a right of dower in the property, or a part thereof, which has not been admeasured, or has an estate by the curtesy, for life or for years, in an undivided share of the property, the commissioners may allot to that party his or her share of the property, without reference to the duration of the estate. And they may make partition of the share so allotted to that party, among the parties, who are entitled to the remainder or reversion thereof, to be enjoyed by them upon the determination of the particular estate, where, in the opinion of the commissioners, such a partition can be made without prejudice to the rights of the parties. All the parties interested should have notice of the proceedings of the commis-sioners, and without it the report will be set aside for irregularity. Rozv v. Roiv, 4 How. 133; Dean v. Empire Ins. Co. 9 How. 69. If, by mistake, the commissioners extend their action to land not describe in the proceedings, their report is void, and so is the judgment of the court based upon it. Corzvithe v. Griffing, 21 Barb. 9. They are not bound to subdivide several parcels among the parties, but may allot a distinct parcel to each party if of equal value ; and if not, may make compensation from one party to the other for equality of partition. Larkin v. Mann, 2 Paige, 29. Actual partition, as between all the plaintiffs on one side and all the defendants on the other, may be made, and an agreement that a tenant under an out.standing lease should be paid for his building at the expiration of his term, whether it be an in- cumbrance or not, may be deemed an equitable charge, to be considered in making actual partition. Walter v. Walter, 3 Abb. N. C. 12. Where a portion only of a deceased owner's lands were partitioned, leaving the rest to be partitioned in another proceeding on the death of his widow, it was held unauthorized by statute. Post v. Post, 65 Barb. 192. Where the equities of the case give some of the parties equities in specific parcels, they are entitled to have the actual value of such parcels ascertained, and a judgment directing that the value of the parcels as.signed on ac- 26o PARTITION. Art. i6. Actual Partition. count of such equities shall be estimated at the same rate as the other parcels bring upon the sale, is error. Warficld v. Crane, 4 Abb. Ct. App. Dec. 525. The commissioners can require the payment of money to equalize shares, and the court will not interfere unless it appears the power has been abused or exercised unjustly. Post v. Post^ 65 Barb. 192; Walter v. Walter, 3 Abb. N. C. 12, supra. All of the commissioners must meet together in the perform- ance of any of their duties — Schuyler v. Marsh, ^j Barb. 350 — and the report should be signed by all, and state that they all met. If not signed by all, a reason for the omission should be given. UnderJtill v. Jackson, i Barb. Ch. 73. Commissioners do not possess the power, with a view to affecting an equal division of the property, to direct a partial destruction of the buildings thereon. Vail v. Vail, 52 Hun, 520; appeal dis- missed, 117 N. Y. 62. Where the referee in partition reports in favor of an actual partition and against a sale if such report is adopted by the court, the proceedings are had from that point under the provisions now being considered. Precedent for Interlocutory Judgment for Actual Partition. At a Special Term of the Supreme Court of the State of New York, held at the Chambers of Mr. Justice Putnam in the town hall at Saratoga Springs, County of Saratoga, N. Y., on the 12th day of December, 1890. Present — Hon. John R. Putnam, Justice. Charles S. Weston Mary R. Stoddard, Abiel Stoddard, L. Allen Car- penter, Charles W. Pollard, Pamelia Weston, James E. Pollard, Cora F. Pollard, Harriet A. Day, Stella P. Burpee, Charles H. Lee, Sarah L. McOmber, Fannie Smith, Sarah Weston, Belle Howe, Lucy A. Allen, Gideon Edwin Lee, Laura A. Henry, Nancy H. Lee, Melissa P. Lee, John Daig and Bridget Daig, his wife; Reuben L. Curtis, Samuel Burpee, Edward B. Clark and Minnie A. Clarke, his wife, and Florence Burpee. 137 N. Y. 119. This action coming on to be tried at a Special Term of the Supreme Court, held at the town hall in Saratoga Springs on the 4th PARTITION, 261 Art. 16. Actual Partition. day of June, 1890, due proof having been made of the service of the summons and complaint herein on all of the defendants, and that a notice of the pendency of action having been duly filed in the office of the clerk of the County of Saratoga, and such papers were served more than twenty days since, that such notice filed more than twenty days since, and that none of the defendants have appeared in the action except the defendant Mary R. Stoddard, who appears by and answers by Charles S. Lester, her attorney; Abiel Stoddard, Ed- ward B. Clark and Minnie A. Clark, who appear and answer by John W. Crane, their attorney; John Daig and Bridget Daig, Samuel Burpee and Reuben L. Curtis, who appear and answer by James VV. Lester, their attorney ; and L. Allen Carpenter, Charles S. Weston and Cora F. Pollard, infants who appear and answer by their at- torney and guardian ad litem, Walter P. Butler, all except the said infants being of full age and denying the material allegations of the complaint; and the issues so raised by said answer having been tried by the court as aforesaid, and its decision having been made and entered whereby actual partition of the said premises described in the complaint is directed to be made among the plaintiff and de- fendants as herein set forth, and whereby the alleged mortgage set out in the amended answer of the defendant Mary R. Stoddard is directed to attach to one-fourth of said premises directed to be set off to the plaintiff and defendants (other than the defendant Mary R. Stoddard and those claiming under her) subject to any defense the said plaintiff and defendants may have thereto, the court not passing on its validity. Now, on motion of Winsor B French, plaintiff's attorney, and after hearing Charles S. Lester, attorney for the defendant Mary R. Stoddard, and counsel for all the other defendants who have appeared (except the said infants) opposed, it is, Ordered, ad- judged and decreed that the rights, shares and interest of the parties to this action in the property described in the complaint are as follows: ist. The plaintiff and the defendant Stella P. Burpee each an un- divided one twenty-fourth part of said premises, subject to the right of dower therein of the said defendant Pamelia Weston. 2nd. The defendants L. Allen Carpenter, Charles W. Pollard and Cora F. Pollard each an undivided one seventy-second part of said premises, subject to the right of dower of their grandmother, the said defendant Pamelia Weston thereon. 3rd. The said defendants Sarah L. McOmber, Charles H. Lee, Pamelia Weston and Fannie Smith each an undivided one forty- eighth part of the said premises, subject to the dower right of the defendant Harriet A. Day in an undivided one fifty-sixdi part of said premises. 4th. The defendants Sarah Weston, Belle Howe, Gideon Edwin Lee and Laura A. Henry each an undivided one hundred and ninety- second part of said premises, subject to the dower right of the said defendant Harriet A. Day in one fifty-sixth part of said premises, and also subject to the dower right of the said defendant Nancy H. Lee therein. 262 PARTITION. Art. 16. Actual Partition. 5th. The said defendant Harriet A. Day to a dower interest in one undivided fifty-sixth part of the said premises. 6th. The said defendant Nancy H. Lee to a dower interest in an undivided one forty-eighth part of the said premises, sul)ject to the dower interest of the said defendant Harriet A. Day in an undivided one fifty-sixth part of the said premises. 7th. The said defendant Melissa P. Lee to an inchoate dower in- terest in an undivided one one hundred and ninety-second part of the said premises, subject to the dower right of the said defendant Harriet A. Day in an undivided one fifty-sixth part of the said premi- ses and the dower right of the said defendant Nancy H. Lee therein. 8th. The said defendant Lucy A. Allen to an undivided one forty- eighth part of the said premises, subject to the dower interest of the defendant Harriet A. Day in an undivided one fifty-sixth part of said premises. 9th. The defendant Mary R. Stoddard to an undivided three- fourths thereof subject to such portions of her said undivided three- fourths as have been conveyed to and are now owned by the defend- ants Bridget Daig, Florence Burpee and Edward B. Clark as afore- said. loth. The defendants Abiel Stoddard and John Daig have no in- terest in the said premises. nth. The defendant Reuben L. Curtis is a tenant under the de- fendant Mary R. Stoddard i2th. The defendant Samuel Burpee is a tenant under the defend- ant Florence Burpee. 13th. The defendant Minnie A. Clark an inchoate dower interest in the property owned by Edward B. Clark as aforesaid. And it is further ordered, adjudged and decreed that the plaintiff and the said defendants, heirs of Charles Lee and Samuel A. Weston, having signified their desire so to do, shall take and hold their one- quarter in common among themselves, and their shares hereinbefore stated shall be set off to them as a whole undivided one-quarter without partition as between themselves, to be held by them in com- mon, and that the said alleged mortgage of the defendant Mary R. Stoddard shall attach, if at all, to the said one-quarter and shall be subject to any defence that the plaintiff and said defendants may have thereto; its validity as a mortgage or lien upon said premises not being passed upon or adjudicated in this action; that partition be made of the premises mentioned in the complaint herein as afore- said, which premises are described as follows: (Insert description.) Charles H. Sturges, Joseph D. Baucus and Arthur D. Seavey, three reputable and disinterested freeholders, are hereby appointed com- missioners to make the partition herein directed and to proceed and report according to law; that said commissioners shall divide the said premises into parts as hereinbefore directed — to be held and en- joyed by the said parties severally, according to their rights and in- terests therein so ascertained, determined and declared as aforesaid; that each party to the action is hereby requested to produce and file PARTITION. 263 Art. 16. Actual Partition. with the said commissioners or a majority of them, for such time as they shall deem reasonable, all deeds, writings, surveys or maps re- lating to the said premises or any part thereof; that in case partition of said premises cannot be made with perfect equality between the said parties according to their respective rights and interests therein, unless compensation be made by one or more of them to other of them for equality of partition, then the said commissioners shall ascertain and report the proper compensation which ought to be made for equality of partition and by whom it should be paid and to whom it ought to be allowed; that the costs, disbursements and referee's fees, stenographer's fees, surveyor's and commissioner's charges and clerk's fees shall be borne and paid by the respective parties in the manner to be hereafter directed in the final judgment to be made and entered in this action; any party to this action may apply to the court at the foot of this judgment for further instruc- tions. December 12, 1890. JOHN R. PUTNAM, J. S. C. Precedent for Judgment for Actual Partition. At a Special Term of the Supreme Court of the State of New York, held at the City Hall, in the City of Kingston, Ulster County, N. Y., on the 7th day of October, 1887. Present — Hon. Samuel Edwards, Justice. NATHAN R. NICKERSON agst. EMMA STEPHENS et al. Due proof having been made of the service of the summons and complaint herein on all the defendants herein except the defendant John Butler, who is deceased, and that a notice of pendency of this action has been duly filed in the office of the clerk of the County of Ulster, that such papers were served more than twenty days since, and that such notice was filed more than twenty days since, and that none of the defendants have appeared in the action except the de- fendants Emma Stephens and Nelson Stephens, who appeared by Linson & Van Buren, their attorneys, and interposed an answer for the defendant Emma Stephens, and a demurrer for the defendant Nelson Stephens, which said demurrer has been disposed of by an order of this court, held September 24, 1887; that the defendant Chauncey R. Shultis has appeared by P. Cantine as his attorney, but has not interposed any answer or demurrer; that the defendant John N. Gillis has appeared by George W. Weiant, his attorney, but has not interposed any answer or demurrer; that all the defendants are of full age. 264 PARTITION. Art. 16. Actual Partition. That this action is brought to partition real property situated in the City of Kingston, Ulster County; that an order of reference has been granted heretofore herein by which it was referred to C. A. Van Wagoner, Esq., to determine and report as to the interest of the several parties to the action in the premises sought to be par- titioned, and as to whether the same could be partitioned, and such report having been filed wherein he sets up the interest of the several parties and the several incumbrances thereon, and also that said premises are so circumstanced that a partition thereof can be made without prejudice to the owners thereof; and it further appearing, by a certified search of the clerk of the County of Ulster, that there are certain specific and general liens on said premises : Now, on motion of John E. Van Etten (ISc Son, the attorneys of said plaintillf, and after hearing Linson & Van Buren, attorneys of the defendant Emma Stephens, it is ordered, adjudged and decreed. That the rights, shares and interests of the parties in the property mentioned in the complaint are as follows: That the plaintiff, Nathan R. Nickerson, is entitled to an undi- vided one-half thereof, subject to the inchoate right of dower of his wife, the defendant Adelia B. Nickerson, in such one-half. That the defendant George W. Nickerson has a specific lien on such one-half bv way of a mortgage. That the defendant Emma Stephens is entitled to an undivided one-half thereof. That the defendant John Cutwater, as executor of the last will and testament of John Polhemus, deceased, has a specific lien on such one-half of Emma Stephens, by way of mortgages. That the defendant Chauncey P. Shultis has general lien on such one-half of Emma Stephens, bv way of judgments. That partition be made of the premises mentioned in the complaint herein, which are descri'. ed as follows: (Here insert description.) That Stephen D. Hood, Jr., Daniel T. Van Buren and McDonald Van Wagonen, Esq., three reputable and disinterested freeholders, are hereby appointed commissioners to make the partition herein directed and to proceed and report according to law. That said commissioners shall divide the said premises into equal parts, quantity and quality relatively considered, and that they allot to the plaintift', Nathan R. Nickerson, one of said parts, and to the defendant Emma Stephens the other of said parts, to be held and enjoyed by the said parties severally according to their rights and interests therein, so ascertained, determined and declared as afore- said. That each party to the action is hereby required to produce and have with the said commissioners, or a majority of them, for such time as they shall deem reasonable, all deeds, writings, surveys or maps relating to the said premises, or any part thereof. That in case partition of said premises cannot be made with per- fect equality between the said parties, according to their respective rights and 'interests therein, unless compensation be made by one or more of them to o^her of them for equality of partition, then the said commissioners shall ascertain and report the proper compensa- PARTITION. 26'y Art. 16. Actual Partition. tion which ought to be made for equality of partition, and by whom it should be paid, and to whom it ought to be allowed. That the costs, disbursements and referee's fees, stenographer's fees, surveyor's and commissioner's charges and clerk's fees shall be borne and paid by the respective parties as follows: Said plaintiff shall bear and pay his own costs and one-half of all fees, expenses, charges and disbursements, last above specified, in the action, and the defendant Emma Stephens shall bear and pay her own costs and one-half of all fees, expenses, charges and disbursements in the action above specifically mentioned, and that the parties entitled to such costs, fees, charges and expenses have execution therefor, according to the course and practice of this court. That any party to this action may apply to the court at the foot of this judgment for further instructions. SAMUEL EDWARDS, Justice Supreme Court. Precedent for Form of Oath by Commissioner. SUPREME COURT. JOHN HASKINS agst. MARY HASKINS, JAMES C. HASKINS, AND LOUISA M. DURYEA. Stephen D. Hood, D. 1'. Van Buren and McDonald Van Wagonen, commissioners appointed to make partition herein by an interlocu- tory judgment, dated January 12, 1888, being duly sworn, doth each for himself depose and say, that he will faithfully, honestly and impartially discharge the trust reposed in him. (Jurat.) (Signatures.) Sub. 3. Report of Commissioners and Confirmation of Report. §§ 1554, 1555, 1556. § 1554. Report of commissioners. All the commissioners must meet together in the performance of any of their duties; but the acts of a majority so met are valid. They, or a majority of them, must make a full report of their proceedings, under their hands, specify- ing therein the manner in which they have discharged their trust, describing the property divided, and the share or interest in a share, allotted to each party, with the quantity, courses, and distances, or other particular description of each share, and a description of the posts, stones, or other monuments; and specify- ing the items of their charges. Their report must be acknowledged or proved, and certified, in like manner as a deed to be recorded, and must be filed in the office of the clerk. 266 PARTITION. Art. i6. Actual Partition. § 1555. Fees and expenses. The fees and expenses of the commissioners, including the expense of a sur-, vey, when it is made, must be taxed under the direction of the court; and the amount thereof must be paid by the plaintiff, and allowed as part of his costs. § 1556. Confirming or setting aside report. The court must confirm or set aside the report, and may, if necessary, appoint new commissioners, who must proceed as directed in this article The following section of the Code fixes the amount of the commissioners' fees : § 3299. A surveyor, employed as prescribed by law, in an action for partition or dower, or to determine dower, is entitled to five dollars for each day actually and necessarily occupied in surveying, laying out, marking or mapping land therein. Each assistant, so employed, is entitled to two dollars for each day actually and necessarily occupied in serving under the surveyor's direction. Each commissioner, appointed as prescribed by law, to make partition or ad- measure dower, is entitled to five dollars for each day's actual and necessary service. The commissioners must look to plaintiff for their fees; they cannot attach plaintiff's attorney for non-payment. Lanioiireux V. Morris, 4 How. 245. On an application to adjust the fees and expenses of commissioners, the number of days' service actually and necessarily rendered by each commissioner, and the actual ■disbursements made by them, must be shown by affidavit. Campbell V. Cajnpbell, 48 How. 255. The report of the commissioners will be set aside on same grounds as verdict of a jury. Livmgstoii v. Clarkson,^ Edw. Ch. 596; Doitbleday v. Neivton, 9 How. 71. The plaintiff, in an action of partition, is liable for services of a surveyor, pursuant to the employment of a referee in an action which, upon plaintiff's motion, is discontinued, upon condition that the plaintiff pay costs and expenses. The surveyor is not limited to statutory fees, but entitled to the value of his services. Mcscrolc V. Fiirmaii, 38 Hun, 355. Commissioners in partition have not the power, in order to effect an equal division, to direct the partial destruction of one of the buildings on the property which is the subject of the suit. Vailv. Vail, 23 St. Rep. 574. PARTITION. 267 Art. 16. Actual Partition. Precedent for Report of Commissioners — Actual Partition. SUPREME COURT — Saratog.a. County. Charles S. Weston azsf. 137 N. Y. 119. Mary R. Stoddard, Abiel .Stoddard, L. Allen Car- penter, Charles W. Pollard, Pamelia Weston, James E. Pollard, Cora F. Pollard, Harriet A. Day, Stella P. Burpee, Charles H. Lee, Sarah L. McOmber, Fannie Smith, Sarah Weston, Belle Howe, Lucy A. Allen, Gideon Edwin Lee, Laura A. Henry, Nancy H. Lee, Melissa B. Lee, John Daig and Bridget Daig, his wife; Reuben L. Curtis, Samuel Burpee, Edward B. Clark and Minnie A. Clark, his wife, and Florence Burpee. In pursuance of an interlocutory judgment made in the above- entitled action and entered the 15th day of September, 1890, the undersigned commissioners in partition do report and return that having been first duly sworn, and having severally taken the oath that we would honestly and impartially execute the trust reposed in us and make partition as directed by the court, we have carefully examined the premises described in the complaint in this action and caused the said premises to be surveyed and have made partition thereof between the said parties according to their respective rights and interests therein as the same have been ascertained, determined and declared by the courts as follows : We have divided the premises into four equal parts and set off to the plaintiff and the defendants L. Allen Carpenter, Charles W. Pollard, Pamelia Weston, James E. Pollard, Cora F. Pollard, Harriet A. Day, Stella P. Burpee, Charles H. Lee, Sarah L. McOmber, Fannie Smith, Sarah Weston, Belle Howe, Lucy A. Allen, (iideon Edwin Lee, Laura A. Henry, Nancy H. Lee and Melissa B. Lee, heirs of Charles Lee and Samuel A. Weston as a whole one un- divided one of said parts, to wit: one-quarter of the whole of said premises as directed by said judgment, said one-quarter being de- scribed on the map hereto annexed as " six and forty-three one hundredths acres set apart to plaintiff Charles S. Weston and de- fendants, heirs of Charles Leeand Samuel A. Weston;" and particu- larly described as follows: (Insert description.) And we further certify and report that the items of expenses and charges attending the said partition including our fees as com- missioners are as follows: To services of commissioner, Charles H. Sturges, 5 days. $25 00 " " Arthur D. Seavey, 5 days... 25 00 " " Joseph D. Baucus, 5 days.. 25 00 268 PARTITION. Art. i6. Actual Partition. Charges, expenses and disbursements of surveyor, To horse hire to view property $^5 ^5 4 oo In witness whereof we, the said commissioners, have hereunto set our hands and seals the 20th day of August, 1891. C. H. STURGES. [L. S.] JOS. D. BAUCUS. [L. S.] ARTHUR D. SEVEY. [L. S.J Precedent for Report of Commissioners in Partition. SUPREME COURT. NATHAN R. NICKERSON EMMA STEPHENS, etc. To the Supreme Court of the State of New York : In pursuance of and in obedience to an order of this court, made in the above case, dated the 7th day of October, 1887, the under- signed commissioners in partition do hereby respectfully report and return : That having been first duly sworn, and having severally taken the oath that we would honestly and impartially execute the trust reposed in us, and make partition as directed by the court, we have carefully examined the premises described in the complaint in this action, and caused the said premises to be surveyed, and have made partition thereof between the said parties according to their respective rights and interests therein as the same have been ascer- tained, determined and declared by the court, as follows: We have divided the whole premises into two equal parts, quality and quantity relatively considered, which are designated on the map hereto annexed by the letters " CC " and " BB," and the division thus made, in our judgment, is the most beneficial, under all the circumstances, that could be made of such premises. We further report that we have set off in severalty to the plaintiff, Nathan R. Nickerson (here insert description). We have also set off in severalty to the defendant, Emma Stephens (here insert description). (Here insert any specific liens on the property and to whom ap- portioned.) And we further certify and report that the items of expenses and charges attending the said partition, including our fees as commis- sioners, are as follows: To services of commissioner, D. T. Van Buren, 4 days.... $20 00 " " Stephen D. Hood, 4 days... 20 00 " " McD. Van Wagoner, 4 days. 2000 Charges, expenses and disbursements of surveyor 5° 0° PARTITION. 269 Art. 16. Actual Partition. To paid notary public three acknowledgments 75 To horse hire to view property . . . ^ $3 00 In witness whereof we, the said commissioners, have hereunto [L. S.] set our hands and seals, 29th day of November, 1882. (Signatures.) Sub. 4. Final Judgment for Actual Partition. §§ 1557-1560. ^ 1557. Final judgment on report ; effect thereof. Upon the confirmation, by the court, of the report of the commissioners mak- ing partition, final judgment, that the partition be firm and effectual forever, must be rendered, which is binding and conclusive upon the following persons : 1. The plaintiff ; each defendant upon whom the summons was served, either personally, or without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act ; and the legal repre- sentatives of each party, specified in this subdivision. So much of section 445 of this act, as requires the court to allow a defendant to defend an action, after final judgment, does not apply to an action for partition. 2. Each person claiming from, through, or under such a party, by title accru- ing after the filing of the judgment-roll, or after the filing, in the proper county clerk's office, of a notice of the pendency of the action, as prescribed in article ninth of this title. 3. Each person, not in being when the interlocutory judgment is rendered, who, by the happening of any contingency, becomes afterwards entitled to a beneficial interest attaching to, or an estate or interest in, a portion of the prop- erty, the person first entitled to which, or other virtual representative whereof was a party specified in the first subdivision of this section. But this section does not apply to a party, whose right and interest are ex- pressly reserved and left unaffected, as prescribed in section 1539 of this act, or to any person claiming from, through or under such party. ^ 1558. Judgment must direct delivery of possession. The final judgment must also direct that each of the parties, who is entitled to possession of a distinct parcel allotted to him, be let into the possession thereof, either immediately, or after the determination of the particular estate, as the case requires. ? 1559. Costs; how awarded. Id.; against unknown parties. The final judgment for the partition of the property, must also award, that each defendant pay to the plaintiff his proportion of the plaintiff's costs, includ- ing the extra allowance. The sum to be paid by each must be fixed by the court, according to the respective rights of the parties, and specified in the judg- ment. If a defendant is unknown, his proportion of the costs must be fixed and specified in like manner. An execution against an unknown defendant may be issued to collect the costs awarded against him, as if he was named in the judgment; and his right, share, or interest in the property may be sold by vir- tue thereof, as if he was named in the execution. 270 PARTITION. Art. 16. Actual Partition. § 1560. Sale of property ; when directed. If the commissioners, or a majority of them, report that the property, or a particular lot, tract, or other portion thereof, is so circumstanced, that a parti- tion thereof cannot be made, without great prejudice to the owners thereof, the court, if it is satisfied that the report is just and correct, may thereupon, except as otherwise expressly prescribed in this article, modify the interlocutory judr;- ment, or render a supplemental interlocutory judgment, reciting the facts, and directing that the property, or the distinct parcel thereof so circumstanced, be sold by a referee, designated in the judgment, or by the sheriff. Where an actual partition of land is ordered, plaintiff's right to costs arises upon final judgment. Saffrcvi v. Saffron, 1 1 St. Rep. 471, citing Davis v. Davis, 3 St. Rep. 163, and § 1579 of the Code. Although by § 1544 an issue of fact in partition was triable by a jury, it does not determine that costs follow as a matter of course. Costs may be awarded in the discretion of the court. Weston V. Stoddard, 42 St. Rep. 76, citing Henderson v. Seott, 43 Hun, 22, and overruling Daz'is v. Davis, 3 St. Rep. 163. In partition suits where an actual partition of the premises is decreed, the costs of the complainant, and all the defendants who have appeared in the cause are to be taxed as between party and party, and the aggregate amount of the several bills apportioned and charged upon parties to the suit according to their rights and interests in the premises, and the parties whose proportionate part of the whole costs are entitled to execution against those whose taxed bills are less; Titbits v. Tibbits, 7 Paige, 204; but the attorney for plaintiff acquires a lien for his disbursements upon the share of plaintiff in the property, in suit of which plain- tiff cannot divest him by an assignment of his interest pending the action. CreigJiton v. Ingersoll, 20 Barb. 541. Where the complainant by an unfounded claim causes litigation, he will be charged with the additional costs incurred thereby. Hamcrsley V. Hauiersley, 7 N. Y. Leg. Obs. 127; Crandall v. Hoysradt, 3 Sandf. Ch. 40. Where, for any cause, when actual partition is made some of the parties are found not entitled to any portion of the land, they should not be charged with costs. Tanner v. Niles, I Barb. 560. For further authorities and reference to the provisions of the Code as to costs, see § 1579. PARTITION. 271 Art. if). Actual Partition. 137 N. Y. 119. Precedent for Final Judgment — Actual Partition. At a Special Term of the Supreme Court, held at the Chambers of Hon. John R. Putnam in the village of Saratoga Springs, N. Y., on the ist day of January, 1892. Present Hon. John R. Putnam, Justice. Charles S. Weston agst. Mary R. Stoddard, Abiel Stoddard, L. Allen Car- penter, Charles W. Pollard, Pamelia Weston, James E. Pollard, Cora F. Pollard, Harriet A. Day, Stella P. Burpee, Charles H. Lee, Sarah L. McOmber, Fannie Smith, Sarah Weston, Belle Howe, Lucy A. Allen, Gideon Edwin Lee, Laura A. Henry, Nancy H. Lee, Melissa P. Lee, John Daig and Bridget Daig, his wife, Reuben L. Curtis, Samuel Burpee, Edward B. Clark and Minnie A. Clark, his wife, and Florence Burpee, This action having been brought on to be heard upon the report of Charles H. Sturges, Joseph D. Baucus and Arthur D. Seavey, commissioners appointed by a judgment of this court, and on read- ing and filing said report, which bears date the 20th day of August, 1891, by which it appears that the said commissioners have made partition of the premises described in the complaint in this action between the parties according to their respective rights and in- terests therein, as the same have been ascertained, declared and determined by this court, and by which said partition the said com- missioners have divided the premises into four equal parts and set off to the plaintiff and defendants L. Allen Carpenter, Charles \V. Pollard, Pamelia Weston, James E. Pollard, Cora F. Pollard, Harriet A. Day, Stella P. Burpee, Charles H. Lee, Sarah L. McOmber, Fannie Smith, Sarah Weston, Belle Howe, Lucy A. Allen, (iideon Edwin Lee, Laura A. Henry, Nancy H. Lee, Melissa P. Lee, heirs of Charles Lee and Samuel A. Weston, as a whole one undivided one of said parts, to wit: One-quarter of the whole of said premises as directed by said judgment, said one-quarter being designated and described on the map hereto annexed as " 6jYo- acres set apart to plaintiff Charles S. Weston and defendants, heirs of Charles Lee and Samuel A. Weston," and particularly described as follows: (Lisert description.) Now, on motion of Winsor B. French, attorney for the plaintiff, and after hearing Charles S. Lester of counsel for the defendants Mary R. Stoddard, Abiel Stoddard, John Daig and Bridget Daig, his wife, Reuben L. Curtis, Samuel Burpee, Edward B. Clark and Minnie Clark, his wife, and Florence Burpee, it is ordered, adjudged 2/2 PARTITION. Art. i6. Actual Partition. and decreed that the said report and all things therein contained do stand ratified and confirmed, and that the partition so made be firm and effectual forever. And it is further ordered, adjudged and decreed that the plaintiff and the said defendants, heirs of Charles Lee and Samuel A. Weston, be and they are entitled to the possession of the said premises hereby set apart to them, and that they be let into the possession thereof. And it is further ordered, adjudged and decreed that the sum of $559.44, being the costs of the plaintiff and his disbursements taxed by the clerk of the court, which includes the sum of $200 additional allowance hereby granted to the plaintiff, shall be a lien upon the said premises described in the interlocutory judgment herein and be paid three-fourths by the defendant Mary R. Stoddard and one- fourth by the owners of the remaining one-fourth. And it is further ordered, adjudged and decreed that the sum of one hundred and twenty- five dollars further additional allowance granted to the plaintiff, shall be paid by and be a lien upon the three-fourths of the property allotted to the said defendant Mary R. Stoddard, and that the plaintiff have execution therefor. And it is further ordered, adjudged and decreed that the defend- ant Mary R. Stoddard recover against the plaintiff her costs ad- justed at one hundred thirty-six and fifty-six one hundredths dollars, and that the same be a lien upon the one-fourth mterest in the premi- ses other than that allotted to the said Mary R. Stoddard. JOHN R. PUTNAM, J. S. C. Precedent for Final Judgment for Actual Partition. SUPREME COURT— Special Term. NATHAN R. NICKERSON agsL EMMA STEPHENS and NELSON STE- PHENS, HER Husband, etc. This action having been brought on to be heard upon the report of Stephen D. Hood, Daniel T. Van BurenandMcD. Van Wagoner, commissioners appointed by an order of this court, and on reading and filing said report, which bears date the 29th day of November, 1882, by which it appears that the said commissioners have made partition of the premises described in the complaint in this action, between the parties, according to their respective rights and in- terests therein, as the same have been ascertained, declared and determined by this court, and by which said partition the said com- missioners have divided the whole of said premises into two allot- ments of equal value, and have set off in severalty to the said plain- tiff, Nathan R. Nickerson, one of the said allotments bounded and described as follows (here insert description of lots so set off); PARTITION. 273 Art. 16. Actual Partition. and also by which partition the said commissioners have set off in severalty to the defendant Emma Stephens the other of said allot- ments bounded and described as follows: (Here insert description of said allotment.) Now, on motion of John J. Linson, attorney for the plaintiff, and Howard Chipp, Jr., attorney for defendant, it is ordered and adjudged that the said report, and all things therein contained, do stand ratified and confirmed, and that the partition so made be firm and effectual forever. And it is further ordered, adjudged and decreed that the said Nathan R. Nickerson and wife and the said Emma Stephens, do each execute under their hands and seals, and acknowledge and deliver to the other, a deed of release and quitclaim of the parcel of land set off to each in severalty as aforesaid. And it is further ordered and adjudged that the said Nathan R. Nickerson be and he is entitled to the possession of the said premi- ses hereby set apart to him in severalty, and that he be immediately let into the possession thereof, and that the said Emma Stephens be and she is entitled to the possession of the said premises hereby set apart to her in severalty and that she be immediately let into possession. And it is further ordered and adjudged that all liens and incum- brances which were a charge upon the undivided interest of the said Nathan R. Nickerson, shall hereafter be a lien and charge only upon that part of said premises hereby set apart to said Nathan R. Nicker- son in severalty, and that all liens and incumbrances which were a charge upon the undivided interest of the said Emma Stephens shall hereafter be a lien and charge only on that part of said premises hereby set apart to the said Emma Stephens. And it is further ■ordered and adjudged that the sum of $1,560, being the costs of the plaintiff, and his disbursements, which includes the sum of $1,000 ad- ditional allowance hereby granted, shall be a lien upon the premises hereby set apart to the plaintiff, over and taking precedence of the rights or liens of any of the parties to this action, and execution may issue thereon. And the sum of $1,500 being the costs of the defendant Emma Stephens, and her disbursements, which includes the sum of $1,000 additional allowance hereby granted, shall be a lien upon the premi- ses hereby set apart to said defendant Emma Stephens, over and taking precedence of the rights or liens of any of the parties to this action and execution mav be issued thereon. A. B. PARKER, J. S. C. Sub. 5. Compensation for Eyu.'\LiTV of Partition, g 1587. § 1587. Compensation to equalize partition. Where it appears that partition cannot be made equal between the parties, according to their respective rights, without prejudice to the rights or interests ■or some of them, the final judgment may award compensation to be made by one party to another for equality of partition. But compensation cannot be so [Special Actions — iS.] 274 PARTITION. Art. i6. Actual Partition. awarded against a party who is unknown, or whose name is unknown. Nor can it be awarded against an infant, unless it appears that he has personal property sufficient to pay it, and that his interests will be promoted thereby. One tenant in common may be allowed a .sum of money from another or others to equalize the interests. Larkin v. Mann, 2 Paige, 27; Smith v. Smith, 10 Paige, 470. This compensation is termed owelty, and is a lien on the share to equalize which it is granted, but it cannot be enforced out of the other property of the tenant in common. It is granted on the principle that the law cannot contemplate the injustice of taking property from one person and giving it to another, without an equivalent or a suffi- cient security for it, and the lien is said to have priority over liens existing again.st the tenant against whom the owelty is awarded. Freem. Co-tenancy and Partition, § 507. And the court will not set aside a report requiring a payment to equalize, unless the power has been abused or so exercised as to operate unjustly. Post v. Post, 65 Barb. 192. When the common lands come to be divided, an opportunity is afforded to give the co-ten- ant, who has enhanced the value of a parcel of the premises by his industry or expenditures, by allotting to him the parcel so enhanced in value, or so much as represents his share, and it is the duty of equity so to do, so far as convenient with equitable partition. Walter v. Walter, 3 Abb. N. C. 12. Where one believes himself to be the sole owner, and he or his grantee makes permanent improvements, they are entitled, on subsequent partition with one who proves to be a co-tenant, to have improve- ments set off on their share or allowance. Conklin v. Conklin, 3 Sandf. Ch. 64; St. Felix v. Rankin, 3 Edw. 323; Town v. Need- ham, 3 Paige, 545; Ford v. Knapp, 102 N. Y. 135. But one of several tenants who maintains proceedings for the protection of the estate, on the promise of the others to share the expense, does not acquire thereby a lien, for disbursements so incurred, against their interests in the estate which can be recognized in his action for partition. Biilen v Bnrdell, 1 1 Abb. 381. Contra, Hitchcock v. Skinner, Hoff. Ch. 21. It is also said, in Jackson v. Bradt, 2 Cai. 302, that one entering under a person claiming the whole in severalty is not entitled to compensation for improvements. The tenant in common will only be allowed for useful, not for ornamental, improvements. Hitchcock V. Skinner, Hoff. Ch. 21. For form of order of refer- PARTITIOX. 275 Art. 16. Actual Partition. ence to take account of rents and profits, and expenses incurred by plaintiff, see this case. It was said, in Green v. Putnai/i. 1 Barb. 50, that where one tenant in common lays out money in improvements, although a lien is not created, equity will not grant a partition without suit- able compensation. It is not necessary, for the party making the improvements, to show the assent of his co-tenants to such im- provements or promise to contribute to the expense. In Taylor V. Baldwin, 10 Barb. 582; Putnam v, Ritchie, 6 Paige, 390, collating cases from English reports, and those of Massachusetts, it is said that it does not appear to be well settled that a tenant in common can make repairs and charge his co-tenant in the absence of any contract ; that he cannot do so without first requesting his co-tenant to unite in such improvements, and that one tenant is not liable for repairs made by another, except by express con- tract. This was not an action of partition, but a proceeding as to surplus moneys arising in foreclosure. Then followed Scott v. Guernsey, 48 N. Y. 106, affirming 10 Barb. 163, holding that where a remainderman, with the consent of the life tenant and full knowledge of her limited title and without the consent of the other remaindermen, has erected buildings upon the premises par- titioned, he is not entitled to compensation from his co-tenants therefor upon partition, and if such remainderman has received rents from such buildings, after the death of the life tenant, he must account therefor. That the party making the claim for allowance for improvements was not within any of the adjudged cases where relief was granted in partition for moneys expended in improvements by one of several tenants in common. That if the property improved has been really enhanced in value the ten- ant making the improvements will get a portion of the benefits, but that the owner cannot be called upon to afford any indemnity or compensation for money expended by another for improve- ments, if that other had full knowledge of the risk he ran when he expended the money; In Coakleyv. Mahar, 36 Hun, 157, an action brought to recover one-half of the rent of certain premises owned in common, the rents of the whole property having been received by defendant, it was held that defendant was not entitled to have the cost of improvements, which were made by him without the assent of his co-tenant, allowed in reduction of the amount due from him 2/6 PARTITION. Art. i6. Actual Partition. for rent collected ; and it is said, upon the authority of Scott v. Guernsey, 48 N. Y. 106, supra, and Ford v. Knapp, below, then not yet reversed, 102 N. Y. 133, that it is well settled in this State that a tenant in common cannot recover from a co-tenant the ex- pense of improvements made unless the co-tenant assented to the improvements. In Prentice v. Jansen, 79 N. Y. 478, it is held that the court has power in partition, where plaintiff made repairs and erected a new building, and defendant acquiesced, to charge the .share of such defendant with its proportion of the expendi- tures. In Ford v. Knapp, 102 N. Y. 133, sjtpra, on appeal to the Court of Appeals, c'xtmg Heivlett v. Wood, 62 N. Y. 75, it was held that "the rule which takes from one co-tenant the fruits of his thrift and enter- prise and adds it to the unthrift and neglect of another; which loads upon industry and ability the losses and burdens of idleness or ill- fortune ; which ties up property from improvement and looks contented upon rot and decay ; is a rule which sometimes the rigid and inelastic jurisdiction of a court of law may adopt from necessity, but is without excuse in a court of equity." It is said that a co-tenant, out of actual occupation, asking the aid of a court of equity for partition against a co-tenant who has made improvements upon the property, is entitled to relief only in con- sideration that any equities thereby arising shall be taken into consideration. The case of Scott v. Guernsey is referred to and distinguished ; every case must be examined upon its own facts and surroundings; and those may occur in which such an allowance would be inequitable. The decision in 31 Hun, 522, is reversed, and the case sent back for a division of the proceeds upon the principle stated, and for an accounting of the incomes and profits. Defendants in possession should be credited with the share of taxes paid for the benefit of their co-tenants, but not for the insurance paid unless for some reason which the case does not disclose. See, also, citation of authorities in briefs of counsel. Improvements made by a tenant in common may present equities, but an allowance therefor should not be made where there is nothing to justify it in the evidence, and where it does not appear that the repairs and improvements were made after the party claiming them became a tenant in common. Hulse v. Hulse, 17 Civ. Pro. R. 92; s. C. 23 St. Rep. 123. PARTITION. 277 Art. 16. Actual Partition. It is not proper to charge a tenant in common with rental for the use of the property unless it was to the exclusion of the others entitled to such property. RicJi v. Rich, 19 St. Rep. 384- An action may be maintained by one tenant in common of a leasehold estate for the partition thereof, and where, at the time of trial, the estate for years has terminated, the action may be continued for an accounting for rents and profits received by the defendant. Waltlicr v. Rcgnault, 31 St. Rep. "766; s. c. 9 N. Y. Supp. 849, 56 Hun, 560. CHAPTER III. DOWER.* PAGE. Article i. The right of dower. Sec. 1604. L. 1896, chap. 547 279 2. Limitationof the action by lapse of time. Sec. 1596. 308 3. The remedy and parties to the action. Sees. 1597, 1598, 1599 ;•• 310 4. Pleadings and miscellaneous matters of practice. Sees. 1605, 1606, 1616, 1625 311 5. Interlocutory judgment for admeasurement of dower. Sec. 1607 319 6. Commissioners, their powers, duties and report. Sees. 1608-1612 322 7. What damages may be recovered in the action. Sees. 1600, 1601, 1602, 1603 328 8. Agreement to accept gross sum and proceedings thereon. Sees. 1617-1624. Rule 70 331 9. Final judgment and its effect. Sees. 1613, 1614, 1615 334 Sections of the Code of Procedure and Where Found in this Chapter. gj.(, ART. PAGE. 1596. Limitation of action for dower 2 305 1597. Against whom action to be brought 3 3io 1598. Who may be joined as defendants 3 31° 1599. Id.; where defendants claim in severalty 3 3io 1600. Damages may be recovered; how estimated 7 328 1601. Id. ; in action against alienee of husband 7 328 1602. Id. ; where several parcels, etc 7 329 1603. Id.; against heirs, etc., aliening land 7 329 1604. Action barred by assignment of dower i 329 1605. Collusive recovery not to prejudice infant 4 3" 1606. Complaint 4 3ti 1607. Interlocutory judgment for admeasurement 5 3^9 1608. Oath of commissioners, etc. ; removal; filling vacancy 6 322 1609. Dower, how administered ^ 322 1610. Report thereupon ° 323 1611. Setting aside report " 323 *The law of Dower is treated, Scribner on Dower, Cameron on Dower, and, also, American and English Encyclopedia of Law, tide " Dower." Tables for computation of dower are given McKeon's Dower and Life tables, Giauque and McClure's Dower and Curtesy Tables and Sterne's tables for com- putation for the present value of dower. [278] ( DOWER. 2/9 Art. I. The Right of Dower. Sections of thk Code — Continued. SEC. ART. PAGE. 1612. Fees and expenses 6 323 1613. Final judgment g 334 1614. Plaintiff may recover sum awarded; court may modify judg- ment 9 334 1615. Junior incumbrancers; not affected by admeasurement g 334 1616. Appeal not to stay execution, if undertaking is given 4 311 1617. Plaintiff may consent to receive a gross sum 8 331 161S. Defendant may consent to pay it; proceedings thereupon 8 331 1619. Interlocutory judgment for sale 8 331 1620. Id. ; directing a part to be laid off 8 331 1621. Liens to be ascertained 8 332 1622. Id. ; payment of; or sale subject to 8 332 1623. Report of sale 8 332 1624. Final judgment thereon 8 332 1625. Certain provisions of article second made applicable 4 312 ARTICLE I. The Right of Dower . Sub. I. Origin and nature of dower. 2. When and in what land widow entitled to dower. Law.s 1896. chap. 547, secs. 170, 183. 3. When dower not allowed in lands exchanged or mortgaged. Laws 1896, chap. 547, secs. 171, 172, 173, 174, 175. 4. Pecuniary provision in lieu of dower and election. Laws 1896' CHAP. 547, secs. 177-181. 5. How DOWER IS released OR BARRED. SEC. i6q4 OF CODE. LaWS 1896, CHAP. 547, SECS. 186, 187. 6. How DOWER AFFECTED BY DIVORCE. LaWS 1896, CHAP. 547, SECS. I76, 182. 7. Right of widow to quarantine and crops. Laws 1S96, chap. 547, SECS. 184, 185. Sub. I. Origin and Nature of Dower. The word " dower" means, in its general acceptance, a cer- tain estate of a wife in the real property of her husband. The origin of the estate is obscure, and in different States and coun- tries its history has been varied. Dower at common law is the life estate of a wife in one-third of all the legal estates of inheritance of which her husband is seized at any time during coverture of a sole, beneficial, and immediate seizin, and which any issue of theirs might rightfully inherit. It has three stages, namely: (i) Its inchoate stage, extending from the time of the marriage or the acquisition of the property in 28o DOWER. Art. I. The Right of Dower. question to the time of the husband's death ; (2) Its consummate stage, extending from the death of the husband ; and (3) Its assigned stage, extending from the time it is set off to the widow. Am. & Eng. Ency. of Law, vol. 5, p. 884. The right of dower in the wife is said to be one of great anti- quity, it was early recognized by the common law, and finds a place in the earliest statutes of this State. It is stated in Scribner on Dower, p. 58, that marriage is an essential prerequisite to the right of dower, and in order to entitle a woman to this provision she must answer to the description of a lawful wife. The right of dower attaches to any estate of which the husband was seized, either in deed or in law, at some time during coverture, subject, of course, to the condition that the wife has not joined in alienat- ing it. Any effectual alienation by the husband before marriage prevents the right of dower from attaching. After marriage it is not in the power of the husband to defraud the wife. The inchoate right of dower which existed during coverture becomes perfected upon the death of the husband, and she then has a right to enter upon the enjoyment of that interest. Dower is said to be the adjunct of marriage and survivorship. ScJiiffcr V. Priidcn, 64 N. Y. 47. It is defined in Daiton v. Hanry, 8 Barb. 618, as an interest in lands contingent during the life of the husband and which attaches as soon as there is a con- currence of marriage and seizin, and cannot be prejudiced by any subsequent act of the husband. Scott \. Hozvard, 3 Barb. 319. Marriage, seizin and the husband's death are necessary to estab- lish the right of dower. Wait v. Wait, 4 N. Y. 95, A widow on her husband's death has absolute dower in the lands of which he died seized, and this right, though resting in action, is liable in equity for indebtedness and is assignable. Payne V. Bcckc}', 13 Week. Dig. 441, reversing 22 Hun, 28. The inchoate right of dower is no part of the married woman's sepa- rate estate. Watson v. Church, 3 Hun, 80. That dower attaches at time of marriage and is a vested right, see Lawrence v. Miller, 2 N. Y. 250. It is a positive institution of law incident to the marriage relation. Moore v. TJie Mayor, 8 N. Y. iio. The authorities upon the subject of the nature and characteristics of dower right are collated, opinion by Ruger, Ch. J., all concur- ring, in Witthaus v. Schack, 105 N. Y. 332, where it is held that dower is not an estate or interest in land but a contingent claim DOWER. 281 Art. I. The Right of Dower. arising not out of contract but as an institution of law, con- .stituting a chose in action, incapable of transfer by grant or con- veyance, but susceptible during its inchoate state only of extin- guishment. A wife's inchoate right of dower is not derived from her hus- band. It attaches from the moment of the grant to her husband, and she takes constructively as purchaser from the grantor. Kiirshcedt v. Union Dime Savmgs Institution, 118 N. Y. 358. All that is necessary under the statute to entitle a widow to dower is that the husband shall have been seized of an estate of the inheritance in the land during coverture. Possession is not necessary. Mclntyrc \. Costcllo, A^J Hun, 289; s. c. 14 St. Rep. 369- But the right of dower and the manner of enforcing a claim therefor are both subject to the power of the Legislature, and depend on the statutes in force at time of the husband's death. Jourdan w. Haran, 56 Supr. Ct. 185; s. c. 18 St. Rep. 858, 3 N. Y, Supp= 541. Whatever cloubt may have existed at common law as to the rieht to assign dower, it has been settled in this State that the widow's dower right, although not admeasured is an absolute right which is assignable. Hozvcll v. Newman, 59 Hun, 538, 37 St. Rep. 296; Payn v. Becker', 87 N. Y. 153; Pope v. Mead, 99 N. Y. 20 [. In Robinson v. Covers, 30 Abb. N. C. 241, 138 N. Y. 425, reversing 67 Hun, 317, it was held that while the widow's estate of dower in the lands of her husband terminated at her death and that in an incomplete proceeding for admeasurement there will be nothing for the court to act upon after the death of the doweress, that proceedings had reached such a stage before the plaintiff's death as to vest in her a right to the money representing the value of her estate in the land and that this right passed to her executor, and it was further held that the plaintiff's right to demand and receive the sum fixed was established when the court made its decision, and this right was not defeated by the fact that the formal order was not entered until after her death, that in equity this might be regarded as done at the time the decision was made. Although the right of a doweress in lands before assignment is not established, it is a charge and encumbrance upon them and 282 DOWER. Art. I. The Right of Dower. is capable of being enforced and of producing a legal estate. It is in that respect similar to the right which a mortgagee has in the lands mortgaged. The interest of neither constitutes an estate in lands, but both are interests which may be transferred or conveyed by any instrument evidencing an intent to so trans- fer them and in neither case can the lands be transferred by the legal owners, so as to leave them in the hands of any subsequent grantees, free from the respective claims of the doweress or the mortgagee. Mjitual Life Ins. Co. v. Shipmaii, 119 N. Y. 324. The inchoate right of dower of the wife during the life of her husband is a subsisting interest which entitles her to redeem mort- gaged premises from a foreclosure in which she has not been served with process. Taggart v. Rogers, 49 Hun, 265. A married woman may, to protect her inchoate right of dower, maintain an action to cancel of record a deed purporting to be executed by herself and her husband, on the ground that it is a forgery- so far as it purports to be executed by her, and is not oblisred to wait for admeasurement of dower after his death. Such action may be maintained although the name of the wife in the deed is not exactly that of the plaintiff, where the similarity is so great as to deceive persons not intimately acquainted with her. Clifford n. Kampfe, 147 N. Y. 383, 42 N. E. Rep. 1,70 St. Rep. 36, afifirming 84 Hun, 393, 65 St. Rep. 550, 32 N. Y. Supp. 352. But it is said that a widow's claim of dower is a mere right of action which cannot be conveyed before admeasurement, and it can only be reached by a creditor's bill or in supplementary proceedings before its formal assignment. Williams v. Kierncy, 6 St. Rep. 560, affirmed, 1 18 N. Y. 679. The Supreme Court cites Ritchie V.Putnam, 13 Wend. 524; Siglar v. Van Riper, 10 Wend. 414; Jackson V. Vandenheyden, 17 Johns. 167; Tompkins y. Fonda, 4 Paige Ch. 448; Payne v. Becker, 87 N. Y. 155. Even though unadmeasured, the right of dower of a judgment debtor vests in a receiver appointed in supplementary proceed- ings. Saylcs V. Nay lor, 5 St. Rep. 816. This case also cites Payne V. Becker, 87 N. Y. 155, together with Pope v. Mead, 99 N. Y. 201, and in discussing the right of a receiver under such circum- stances, cites Scott V. Elmore, 10 Hun, 68 ; Moak v. Coats, 33 Barb. 498; Manning v. Evans, 19 Hun, 500. That the right of dower until assigned is a mere chose in action, not subject to sale on execution, is held. Laivrence v. Miller, 2 DOWER. 28- Art. I. The Right of Dower. N. Y. 245 ; Moore v. Mayor ^ 8 N. Y. iio; Aikinan v. Harscl, 98 N. Y. 186. A widow's dower right, although not admeasured, is an abso- lute right which is assignable, and where she assigns, taking back a mortgage on the land, her equities are the same as if she had conveyed the land and taken back a mortgage for the purchase price. Pope v. Mead^ 99 N. Y. 201 ; same principle, Bostwick v. Beach, ICX) N. Y. 414; see, however, Sayles v. Nay/or, 5 St. Rep. 816, citing 2 N. Y. 245, 8 N. Y. no, 98 N. Y. 186, to the point that before assignment, a widow's dower is not the subject of sale under execution. Sub. 2. When and in What Lands Widow Entitled to Dower, Laws 1896, Chap. 547, §§ 170, 183. § 170. Dower. A widow shall be endowed of the third part of all the lands whereof her hus- band was seized of an estate of inheritance, at any time during the marriage. § 183. Effect of acts of husband. An act, deed, or conveyance, executed or performed by the husband without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the contingent right of dower of a married woman, or a judgment or decree confessed by or recovered against him, or any laches, de- fault, covin, or crime of a husband, does not prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof. The statutes relating to dower were repealed by chapter 547, Laws of 1896, and art. V of that chapter enacted in their place. The sections are given under the subdivisions which follow. As the law and practice on the subject are so closely associated it is impossible to treat the procedure without reference to the right of dower as given by statute. A widow is not, by virtue of her dower right, a tenant in com- mon. Wood V. Chite, i Sandf. Ch. 349. She has no estate in the lands after assignment of dower. Green v. Putnam, i Barb. 500; Scott V. Howard, 3 Barb. 319; AsJi v. Cook, 3 Abb. 389; Kyle v. Kyle, 3 Hun, 458. To entitle the widow to dower, she must show a seizin of the husband during coverture. Poor v. Norton, 15 Barb. 485. An instantaneous seizin, of which the husband is immediately divested, is not sufficient. Storto v. Tefft, 15 Johns. 438; CunningJiavi v. Knight, i Barb. 399. Pos- session by the husband is prima facie evidence of seizin. Sitzer v. Waltermire, 5 Cow. 299; s. c. 7 Cow. 353. 284 DOWER. Art. I. The Right of Dower. Where a husband is seized of a vested remainder, expectant upon an estate for Hfe, subject to be defeated by his own death prior to that of the tenant for life, and he purchases the Hfe estate, this is such a seizin as entitles his wife to dower, subject to be de- feated by his death before that of the life tenant. House v. Jack- son, 50 N. Y. 161 ; Pozvcrs v. Jackson, 57 N. Y. 654. A woman married abroad, even before the naturalization of her husband, becomes entitled to dower if he subsequently becomes naturalized here, although she did not follow him to this country. Burton v. Burton, i Keyes, 359. The marriage within the State of a woman with a man who has been divorced for his own adultery, the former wife of the man being living at the time of such marriage, is void, and she is not entitled to dower in his property. Cropsy v. Ogdcn, 1 1 N. Y. 228. The husband must have been seized of an estate of inherit- ance to entitle a widow to dower ; a reversion in fee or a vested remainder is not suf^cient. Durando v. Durando, 23 N. Y. 331. The joinder of a wife with her husband in a conveyance operates as a release of her future contingent right of dower, in aid of the title or lien so created, and so long as the title remains outstand- ing, she cannot claim dower ; but when the conveyance is defeated by sale under a prior incumbrance, the wife is restored to the original position, and may, after the death of her husband, recover dower in the lands after satisfaction of lien created by her convey- ance. Hinclicliffc \. Shea, 103 N. Y. 153. The widow is not entitled to dower in her husband's estate for the life of another; Gillis v. Brozvn, 5 Cow. 588; nor in a vested remainder in fee belonging to the husband, limited on a precedent remainder; Green v. Putnam, i Barb. 500 ; or in property devised to another during her widowhood ; Bccknian v. Hudson, 20 Wend. 53; nor in a mere trust estate conveyed to her husband for a specific purpose. Cooper v. Whiting, 3 Hill, 95 ; Gerviond v. Jones, 2 Hill, 569; see Tcrrett v. Cromdie, 6 Lans. 82. Nor in lands for which her husband holds a contract of sale if he alien during coverture. Hicks v. Stebbins, 3 Lans. 39. Where land is limited over to another by way of executory devise in case of the death of the first taker without lawful issue, the widow of the latter is not entitled to dower therein. Welter v. Welter, 28 Barb. 588. Until it has been determined whether a parcel shall be set off to a widow or a sale had, her right beyond mesne DOWER. 285 Art. I. The Right of Dower. profits remains a mere naked and inchoate life estate and termi- nates on her death, notwithstanding prior service of notice by her to accept a gross sum in lieu of dower. McKcoi v. Fish, y^ Hun, 28, afifirmed, 98 N. Y. 645. A former wife is not entitled to dower in land acquired by the husband after divorce on the ground of his adultery. Kadc v. Laubcr, 48 How. 382. Where the wife joins with the husband in conveying land to trustees to sell, she is not entitled to dower in parcels sold or contracted to be sold at the time of his death. Hazvhy v. James, 5 Paige, 318, 453 ; Hicks \. Stcbbiiis, 3 Lans. 39. When lands are taken for public use and the value of the entire fee is paid him, the wife's possibilty of dower is defeated. Moore V. The Mayor, 8 N. Y. no; Matter of Central Park, 16 Abb. 56. The rule that dower upon dower cannot be allowed does not apply where dower has not been actually assigned to the prior doweress. In such case the widow of the subsequent owner is entitled to the dower in the whole premises. Ehvood v. Klock, 13 Barb. 50. Contra, Matter of Cregier, i Barb. Ch. 598. For decisions relating to dower upon dower, see Reynolds v. Reynolds, 5 Paige, 161 ; Saffordw. Safford, 7 Paige, 259; Dunhani v. Osborn, I Paige, 634. A widow's dower in an equity of redemption under a mortgage made before marriage is liable to be defeated by en- forcement of the mortgage. Van Duyne v. Thayre, 14 Wend. 233, So C. 19 Wend. 162. Where a reservation of perpetual rent is made, the widow has dower in it as an incorporeal hereditament ; but, where the rent may be discharged by the payment of a gross sum, right of dower is defeated. Moriarta v. McRae, 10 St. Rep. 631. A release of the equity of redemption is equivalent to foreclosure and defeats dower. Jackson v. Dewitt, 6 Cow. 316. A widow is not entitled to dower in land conveyed to the husband during coverture as against his simultaneous mortgage for the purchase money, whether to the grantor or a third party. Kittle v. Van Dyck, I Sandf. Ch. 76. It is said in Cunninghani v. Knight, i Barb. 399, but questioned in Blydenhnrgh v. Northrop, 13 How. 289, that where one receives a deed and gives a mortgage for the pur- chase-money and afterwards marries, his wife has no right of dower. A wife is not entitled to dower in a surplus arising from a sale on foreclosure of a mortgage executed by her husband and herself if the husband died after the sale was confirmed. Frost v. Peacock, 4 286 DOWER. Art. I. The Right of Dower. Edw. 678. Where specific performance was decreed against the vendor's widow, who was the sole devisee, Jicld, that she was not entitled to dower. Myers v. De Micr, 52 N. Y. 647. It has been said that a court of law will not set aside a deed executed by the husband before the marriage in fraud of the wife's right of dower. Baker v. Chase, 6 Hill, 482. But the contrary is held. YoHJigs V. Carter, i Abb. N. C. 135; affirmed, 10 Hun, 194; Babcock V. Babcoek, 53 How. 97; Szvain v. Ferine, 5 Johns. Ch. 482 ; Ponieroy v. Ponieroy, 54 How. 228. There may be dower in lands held at any time during coverture by the husband and others as tenants in common. Smith v. Smith, 6 Lans. 313. Where a husband during coverture had a legal estate of inheritance in a wharf or pier, his widow is entitled to dower therein. Beellow v. Stillwell, g\ Hun, 384, 36 Supp. 129, 71 St. Rep. II. The widow of a deceased partner is entitled to dower in a moiety of lands held by two in common. Hazcley v. James, 5 Paige, 451. An ante-nuptial agreement by a woman that she will not claim her dower in the event of her intended marriage is contrary to public policy, and, unless founded upon the consideration of some provision for her in lieu of dower, will be ineffectual both at law and in equity. Curry v. Curry, 10 Hun, 366. The widow of a mortgagor was made a party in fore- closure, and answered and submitted to the decree of the court. Held, that she was entitled to the use of one-third of the surplus money after deducting the mortgage debt as dower. Tabele v. Tabcle, i Johns. Ch. 45. If the husband purchase the share of a tenant in common, pending proceedings for a partition which result in a sale, his widow is entitled to dower in his proportion of the proceeds. Church v. Church, 3 Sandf. Ch. 434. W'here two tenants in common having made a parol partition, one of them having sold his portion, the other Joined in the con- veyance to the purchaser, this is not sufficient to oust the widow of the former of her dower in the whole of the land so conveyed. Dolf V. Bassett, 15 Johns. 21. See, however, where conveyance was followed by possession to the contrary. Totten v. Stuyvesant, 3 Edw. 500; Jackson v. Edzvards, 7 Paige, 386. A widow is en- titled to dower in lands which she had united \\ith lier husband in conveying to another, on the deed being declared fraudulent as to creditors. Maloney v. Horan, 49 N. Y. 11 1. Where lands are sold for the payment of debts, one-third of the DOWER. 287 Art. I. The Right of Dower. gross amount is to be invested for the widow, and she is entitled to one-third of the interest on the purchase-money from the day of sale. Higbicx. West lake, 14 N. Y. 281. Where the husband aliens in his lifetime, the wife is entitled only to dower according to the value of the property at the time of the alienation. Hale v. Jatucs, .6 Johns. Ch. 258; Walker v. Schuyler, 10 Wend. 480 ; HujupJirey v. PJiinney, 2 Johns. 484; Dorchester v. Covefitry, 11 Johns. 510; Shazv v. White, 13 Johns. 179; Parks v. Hardy, 4 Bradf. 15 ; Marble v. Leivis, 53 Barb. 432. Where an annuity does not become a charge on the land by force of the original devise, there having been sufficient personalty at testator's death to furnish it, the right of dower of the wife of the devisee is entitled to priority over the right of the annuitant and cannot be affected by subsequent arrangements between such annuitant and the devisee. Where the title comes to the hus- band subject to a lien, the wife's inchoate right of dower is also subject to such lien. Where a will creates a trust to secure an annuity during the minority of testator's youngest son and no longer, and provides that at his reaching majority a fund be set apart for the annuity and the balance divided among testator's children, the shares of the latter vest when the youngest son at- tains majority and the right of dower of the wife of one of them becomes consummate upon the subsequent death of her husband during the life of the annuitant. Clark v. Clark, 147 N. Y. 639 ; 42 N. E. Rep. 275 ; 71 St. Rep. 273 ; affirming 84 Hun, 362 ; 32 N. Y. Supp. 325 ; 65 St. Rep. 483. Dower in a defeasible estate is lost when the estate is defeated. Moriarta v. McRca, 45 Hun, 564; s. C. 10 St. Rep. 631. But an infant wife does not lose her dower by joining in her husband's deed. Mclntyre v. Costcllo, 14 St. Rep. 370, 47 Hun, 289. Where the husband has not an estate in possession, to which the right of dower of his wife will attach and no immediate inter- est in a decedent's estate, if he agrees not to contest the will of the decedent, his wife will not acquire dower interest in the premi- ses of the deceased. Jones v. Duff, 47 Hun, 170. It is not essential that a widow's dower should be admeasured or assigned to her, in order to entitle her to be allowed for it on the settlement of an estate. Matter of Lenahan, 4 N. Y. Supp. 219; S. C. 21 Ab, N. C. 282. 288 DOWER. Art. I. The Right of Dower. The doctrine that when a husband's deed is void or ceases to ■operate, the wife may, after his death, recover dower as if she had never joined in the conveyance, is appHed in Wilkinson v. Pad- dock, 57 Hun, 191 ; s. c. 32 St. Rep. 535. The widow of a co-partner is only entitled to dower in the real property of co-partnership of which her husband was a member, after the settlement of the partnership accounts. Grecmvood v. Marvin, 11 St. Rep. 235, 1 1 1 N. Y. 423, citing Sage v. Sherman, 2 N. Y. 432; Winter v. Eckert, 17 Weekly Digest, 166; Dawson v. Parsons, 10 Misc. 428, 6}, St. Rep. 320, 31 Supp. 78, holding Smith V. Jackson, 2 Edw. Ch. 34, to be overruled by later au- thorities and citing Fairchild \. Faircliild, 64 N. Y. 471 ; Coliiimb V. Read, 24 N. Y. 505 ; BucJian v. Sumner, 2 Barb. Ch. 167; ]Vi/- liams V. Walker, 2 Sandf. Ch. 325; Bnlkley v. Bnlklcv, 11 Barb. 43; Smith v. Danvers, 5 Sandf. Ch. 669; Chester v, Dickinson, 52 Barb. 349; Everett w Schepmoes, 6 Hun, 479; Garrett v. Scheffer, 47 N. Y. 656; Hiscock v. Phelps, 49 N. Y. 103. Where a widow assigned her dower and died without taking any proceedings to recover it, an action is not maintainable either to enforce a lien therefor or to admeasure the same or to recover a sum in gross in lieu therefor. Hozvellv. Newman, ^y St. Rep. 296. The position of a wife in respect to her husband's property is limi- ted by the Revised Statutes, and save as brought within those limitations, she is without the right to assert any claim to it. To entitle the wife to dower, the husband must be seized either in fact or in law of a present freehold in the premises, as well as an estate of inheritance. Phelps v. Phelps, 143 N. Y. 197, 75 Hun, 577, 59 St. Rep. 608, 27 Supp. 620. In proceedings for the condemnation of real estate under the right of eminent domain, the inchoate right of dower of a wife is to be recognized and protected in the proceedings as against her husband. Matter of Trustees of Nezv York and Brooklyn Bridge, 75 Hun, 558, 59 St. Rep. 613, 2-/ Supp. 597. An action may be maintained by a wife during the lifetijTie of her husband, to set aside, so far as she is concerned, a deed exe- cuted by her husband and the person purporting to be his wife, of premises of which the husband was seized during the marriage. Cliffords. Kampfe, 147 N. Y. 383, afifirming 84 Hun, 393, 65 St. Rep. 550, 32 Supp. 332. Dower is held to be attached to testator's interest in a lease DOWER, 289 Art. I. The Right of Dower. made by Seneca Indians, authorized by act of Congress, and to his interest in lands owed by him with others in the name of one of whom title was taken. Matter of McKay, 5 Misc. 123. The right of dower is merely an incident to the husband's title, and such right falls with the estate of the husband. Green v. Rey- nolds, 54 St. Rep. 846. Sub. 3. Dower not Allowed in Lands Exchanged or Mort- gaged FOR Purchase-money. Laws 1896, Chap. 547, §§ 171-175. § 171. Dower in lands exchanged. If a husband seized of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but she must make her election, to be endowed of the lands given, or of those taken in exchange; and if her election be not evinced by the commencement of an action to recover her dower of the lands given in exchange, within one year after the death of her husband, she is deemed to have elected to take her dower of the lands received in exchange. § 172. Dow^er in lands mortgaged before marriage. Where a person seized of an estate of inheritance inlands, executes a mortgage thereof, before marriage, his widow is, nevertheless, entitled to dower of the lands mortgaged, as against every person except the mortgagee and those claim- ing under him. § 173. Dower in lands mortgaged for purchase-money. Where a husband purchases lands during the marriage, and at the same time mortgages his estate in those lands to secure the payment of the purchase-money, his widow is not entitled to dower of those lands, as against the mortgagee or those claiming under him, although she did not unite in the mortgage. She is entitled to her dower as against every other person. § 174. Surplus proceeds of sale under purchase-money mortgages. Where, in a case specified in the last section, the mortgagee, or a person claim- ing under him, causes the land mortgaged to be sold, after the death of the husband, either under a power of sale contained in the mortgage, or by virtue of a judgment in an action to foreclose the mortgage, and any surplus remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is nevertheless entitled to the interest or income of one-third part of the surplus for her life, as her dower. § 175. Widow of mortgagee not endowed. A widow shall not be endowed of the lands conveyed to her husband by way of mortgage, unless he acquires an absolute estate therein, during the marriage. Where an infant unites with her husband in conveying land subject to a purchase-money mortgage, which mortgage the grantee purchases and takes an assignment of, the mortgage is [Special Actions — 19.] 290 DOWER. Art. I. The Right of Dower. not merged in the interest of the grantee, and the wife is not en- titled to dower to the extent of the mortgage. Dc Lisle v. Herbs, 25 Hun, 485. The widow does not lose her dower in surplus after foreclosure, by failure to assert her claim, where the person to whom such surplus has been paid has not been induced to take any action or part with anything, and has sustained no injury by the widow's neglect. MattJiezvs v. Dnryea, 45 Barb. 6g, affirmed, 4 Keyes, 425. A widow may be endowed out of an equity of redemption, which was vested in her husband at the time of her marriage. Co/es v. Coles, 15 Johns. 319; Denton w. Nanny, 8 Barb. 618; Titns V. Neilson, 5 Johns. Ch. 452; Van Duync v. Thayre, 14 Wend. 233; S. C. 19 Wend. 162; Bell v. Mayor, 10 Paige, 49. The widow is entitled to dower in lands of which her husband died seized, though at his decease there was an outstanding mort- gage for the whole of the purchase-money, which was subse- quently paid off by a tenant holding under a release from her hus- band's heir-at-law. Hiteheock v. Harrington, 6 Johns. 290. See Collins V, Torry, 7 Johns. 278; Coales v. Checver, i Cow. 460 ; Bunyan v. Stezvart, 12 Barb. 547; Wheeler v. Morris, 2 Bosw. 524. Where a husband releases his equity. of redemption in mortgaged premises, the wife is entitled to dower in the land, after deducting the mortgage. Swaine v. Perrine, 5 Johns. Ch. 482; Hale v. James, 6 Johns. Ch. 258. The widow is entitled to dower in in- « cumbered property according to its value at the time of her hus- band's death. Everston v. Tappen, 5 Johns. Ch. 497. Where the deed and mortgage are simultaneously made for purchase-money, the widow only takes the dower in the equity. Stozv V. Tift, 15 Johns. 458; Jaekson \\ Dezvitt, 6 Cow. 316; Mills V. Van Voorhis, 20 N. Y. 412 ; White v. Button, 37 Hun, 556. Under the Revised Statutes, the widow is held to be entitled to equitable dower in the descendible equitable interests of the husband, which belonged to him at the time of his death, as land which he had paid for but of which he had received no conveyance or of land which he had paid for and the deed had been taken by another. Haivleyv. James, 5 Paige, 318, 453. The plaintiff, to maintain an action for dower, need not show that the husband went into actual possession. Where no adverse possession is shown, a title vested in him will constitute such seizin as the law requires. Mclntyrc v. Costello, 47 Hun, 288. A widow, who was also executrix, was empowered by the will to sell the land, but she DOWER. 291 Art. 1. The Right of Dower. suffered it to be sold under a mortgage, and became the purchaser in her own right and sold it. Held, that, though liable to account as trustee for the proceeds, she was entitled to her dower. Evcrt- son V, Tappcn, 5 Johns. Ch. 497. The statute provides that the wife is not entitled to dower in lands mortgaged, when purchased for the purchase-money, as against the mortgagee, and that claim- ing under him does not affect her right of dower in the equity of re- demption. Blydcnburgh v. Nortlirop, 13 How. 289; Mills y. Win VoorJiccs, 20 N. Y. 412. The wife joining with the husband in a mortgage only operates to extinguish her dower as against the mortgage; if she survives her husband it does not affect her con- tingent right of dower in the equity of redemption. Hawlcy v. Bradford, 9 Paige, 200. One being seized of land subject to a mortgage, which had not been executed by the wife, conveyed to another, his wife joining with him ; the grantee then reconveyed to the grantor. Held, that the widow's dower was limited to the equity. Hooglaiid v. Watt, 2 Sandf. Ch. 148. A wife's inchoate right of dower is superior to the equity of one who has loaned money upon mortgage to the hu.sband, deceased, by a false representation that he was unmar- ried, and this, although the money was used to pay off a prior mortgage. West/all v. JVinse, 7 Abb. N. C. 236. A wife takes dower in the mortgaged premises subordinate to the power of sale in, as well as the lien of, a purchase-money mortgage in which she did not join. Brackctt v, Bauin, 50 N. Y. 8. A deed by the wife joining with the husband operates as a release or satisfaction and removes an incumbrance instead of transferring an interest. See Jones v. Fleming, 104 N. Y. 418; Hinchcliffe w. Shea, 103 N. Y. 153; Witthansv. Sehcnck, 105 N. Y. 332, was followed in Aseh v. Aseh, 47 Hun, 286. The wife of a mortgagor is dowable in the surplus moneys even though she joined in the mortgage. N. V. Life Ins. Co. v. Mayer, 12 St. Rep. 119, af^rmed. 108 N. Y. 655. A mortgage executed for the purchase money of lands pursu- ant to an oral agreement by which it was to have been taken at the time of the conveyance, though in fact executed subse- quently, is superior to the dower interest of the wife of the mort- gagor, who married him in the intervening period. UlricJi v. UlricJi, 17 St. Rep. 414. But in order to cut off the dower right of the wife of a mort- 292 DOWER. Art. I. The Right of Dower. gagor under a purchase money mortgage, she must be made a party to the action. Sheldon v. Hoffnagle, 51 Hun, 478; S. C. 4 N. Y. Supp. 287, 21 St. Rep. 637. Sub. 4. Pecuniary Provision in Lieu of Dower and Election. Laws 1896, Chap. 547, §§ 177-181. §177. When dower barred by jointure. Where an estate in real property is conveyed to a person and his intended wife, or to the intended wife alone, or to a person in trust for them or for the intended wife alone, for the purpose of creating a jointure for her, and with her assent, the jointure bars her right or claim of dower in all the lands of the hus- band. The assent of the wife to such a jointure is evidenced if she be of full age, by her becoming a party to the conveyance by which it is settled; if she be a minor, by her joining with her father or guardian in that conveyance. § 178. When dower barred by pecuniary pro visions. Any pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her as prescribed in the last section, bars her right or claim of dower in all the lands of her husband. § 179. When widow to elect betw^een jointure and dower. If, before the marriage, but without her assent, or if after the marriage, real property is given or assured for the jointure of a wife, or a pecuniary provision is made for her, in lieu of dower, she must make her election whether she will take the jointure or pecuniary provision, or be endowed of the lands of her husband; but she is not entitled to both. § 180. Election between devise and dower. If real property is devised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property so devised or the provision so made, or be endowed of the lands of her husband, but she is not entitled to both. § 181. When deemed to have elected. Where a woman is entitled to an election, as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for her dower. But, during such period of one year after the death of her said husband, her time to make such election may be enlarged by the order of any court competent to pass on the accounts of executors, administrators or testamentary trustees, or to admeasure dower, on an affidavit showing the pendency of a proceeding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of an action to construe or set aside such will, or that the amount of claims against the estate of the testator cannot be ascertained within the period so limited, or other reasonable cause, and on notice given to such persons and in such manner as such court may direct. Such order shall be indexed and recorded in the same manner as a notice of pendency of action in the office of the clerk of each county wherein the real property or a portion thereof affected thereby is situated. DOWER. 293 Art. I. The Right of Dower. An order allowing an extension of time within which a widow shall elect between the provision in the will and dower, should not be granted, unless reasonable cause therefor be shown. Bradlmrst v. Field, 32 St. Rep. 430. The amendment en- larging time was first made very soon after the decision by the Court of Appeals of Akin v. Kellogg, 119 N. Y. 441, which held that the provisions of this section requiring a widow to elect within one year between a provision under the will and the right to have her dower admeasured, and declaring that she shall be deemed to have elected to take the testamentary provision unless within that time she entered upon the lands to be assigned to her for dower, or commenced proceedings for the as- signment thereof, had the force of a statute of limitations, and she was at once, on the death of the testator, charged with the duty of informing herself so as to make her election. Afifirming 48 Hun, 459. The same case on a former appeal is reported, 39 Hun, 252, reversing 16 Abb. N. C. 265. The claim of dower is to be favored, and the presumption is that a provision in the will not expressed to be in lieu of dower was intended as a bounty. Leonard v. Steele, 4 Barb. 20. A legacy to a wife not expressly declared to be in lieu of dower will not be so intended, unless such intent can be deduced by clear and manifest implication from the provisions of the will. The claim of dower must be inconsistent with the will and repug- nant to its dispositions, and such, as if admitted, would disturb the will. Adsit v. Adsit, 2 Johns. Ch. 448. A devise of a testa- tor's whole estate to his widow for life, with remainder over, is not a provision in lieu of dower, unless such intention can be implied from other terms of the will, and the widow may take one-third of the estate as doweress, and the residue as devisee. Lewis v. Smith, 9 N. Y. 502. In order to render a claim for dower barred by acceptance of a provision under a will, it must be the manifest intention of the testator that the provision should be received in lieu. Jackson v. Churchill, 7 Cow. 287. To bar the widow of dower by implication, where the testator has not in terms declared his intention on the subject in his will, the provi- sions of the will, or some of them, must be absolutely inconsist- ent with her claim of dower. San ford v. Jackson, 10 Paige, 266. A testamentary provision of the husband for the wife will, if accepted by her, be a legal as well as an equitable bar of dower in 294 DOWER. Art. I. The Right of Dower. all cases where it appears expressly, or by clear implication, to have been given in lieu of that right, but not otherwise. Van Or den v. Van Orden, lo Johns. 30; Kennedy v. Mills, 13 Wend. 553; Bull V. Church, 5 Hill, 206; Wood v. Wood, 5 Paige, 601 ; Fuller V. Yates, 8 Paige, 329; Smith v. Kniskern, 4 Johns. Ch. 9; Vernon v, Vernon, 7 Lans. 492 ; Rathbone v, Dyehnan, 3 Paige, 9; Havens V. Havens, i Sandf. Ch. 324; Mills v. Mills, 28 Barb. 454; Steivart v. Mc Mart in, 5 Barb. 438; Irving v. Dekay, 9 Paige, 521. A competent certain provision .settled upon an infant, in lieu of dower, is an equitable bar to dower, but the provision must be as beneficial to her, and as certain, as that required to make a legal jointure a bar under the statute. McCartce v. Teller, 2 Paige, 511 ; s. C. 8 Wend. 267; .see Hawley v. James, 5 Paige, 318; s. c. 16 Wend. 61. A provision in lieu of dower, if accepted, bars the wife's dower in lands the testator had conveyed before the date of the will. Steele v. Fiseher, i Edw. 435; Palmer v, Voor- liis, 35 Barb. 479. Where a husband and wife lived apart, and the husband had covenanted to allow an annual sum for the separate mainten- ance of the wife, and made a provision for her in lieu of dower, held, she was entitled to both. Carson v. Murray, 3 Paige, 483. The widow's acceptance of a testamentary disposition, in lieu of dower, bars her right of dower, and it is no answer to say that she has not received all that was intended for her. Kennedy v. Mills, 13 Wend. 553; Van Orden v. Van Orden, 10 Johns. 30. But if part of the provision made by the testator is declared void, the widow is not bound, by a previous election, to receive such possession except as against bona fide purchasers or incumbrancers. Honev. Van Sehaiek, 7 Paige, 221, affirmed, 20 Wend, 564. The widow's relinquishment of dower forms a valuable consider- ation for the testamentary gifts, and they must be paid in prefer- ence to other legacies and without abatement. ' Isenhart v. Brown, I Edw. 411. A husband cannot affect his wife's right of dower by a power of sale in the will. Leiuis v. SmitJi, 9 N. Y. 502. Where a testamentary provision, in favor of a widow, is of shorter duration than the estate in dower, and is charged with a burden, her acceptance of it is not a waiver of her right of dower. Lasher V. Lasher, 13 Barb. 106. An acceptance of an annuity in lieu of dower and payable out of the rents of the real estate does not DOWER. 295 Art. I. The Right of Dower. affect the widow'.s right to personalty. Edsall v. VVatcrbiiry, 2 Redf. 48; Hatch v. Basset t, 52 N. Y. 359. See Sink v. Sink, 53 How. 400. Where a legacy is given in lieu of dower it does not vest absolutely in the widow, and a bequest over, in case of remar- riage, is good. Smith v. Van Nostrand, 64 N. Y. 278, reversing 3 Hun, 450. The acceptance of a provision in lieu of dower does not bar the widow's right to share in certain lapsed legacies. Billiard v. Benson^ i Dem. 486. If a widow enters into possession of real estate devised to her in lieu of dower, and institutes no proceeding for dower within a year thereafter, it is deemed an acceptance of the testamentary provision. Groiit v. Cooper, 9 Hun, 326. If she enters proceed- ings for dower, as to one parcel, within the year, it is sufficient. Hazvley v. James, 5 Paige, 318, reversed on other grounds, 16 Wend. 61. But commencing of proceedings for the admeasure- ment of dower is said, in Walton' s Estate^ i Tuck. 10, not to be a sufficient election. A suit brought by a widow to set aside an instrument by which she agreed to accept certain provisions of the will in lieu of dower is not a proceeding for the recovery of dower within a year, under the statute — i R. S. 742, § 14 — compell- -ing her to take such proceeding within a year. CJiamberlain v. Chamberlain, 43 N. Y. 424. The widow must make her election within one year after her husband's decease, without notice from her husband's devisees as to the provisions of the will. Palmer V. Voorhis, 35 Barb. 479. In order to put the widow to her elec- tion, where the husband has effected an exchange of lands during his lifetime, there must be a mutual grant of equal parcels of land, the one in consideration of the other. Wileox v. Randall, 7 Barb. 633. See Riinyan v. Ste-zi-art, 12 Barb. 537; Smith v. Gardner, 42 Barb. 536. Where the provisions of the will cannot be carried out consist- ently with the widow's claim of dower, she is put to her election. Young V. Boyd, 64 How. 213; Sullivan v. Mara^ 43 Barb. 523; Wet more v. Peek, 66 How. 54. See Ex parte Frazier, 92 N. Y. 239. In cases where the widow is bound to elect between dower and the benefits given her by the will, she is entitled to have the respective values and amounts of her two interests ascertained before she elects between them. Scribner on Dower, vol. 2, p. 468 ; Hindley v. Hindley, 29 Hun, 318. If a trust for the benefit of the widow vests the entire legal estate in the trustees, it is inconsist- 296 DOWER. Art. I. The Right of Dower. ent with the right of dower, and the widow is put to an election. Savage v. Burnham, 17 N. Y. 561 ; Tobias v. Ketclnun, 32 N. Y. 319. Where the will authorizes the trustees to sell the real estate not devised to the wife, this is inconsistent with dower. Vernon V. Vernon, 53 N. Y. 351. A gift in lieu of dower and its acceptance is in effect a contract. Hathaway v. Hathaway, 37 Hun, 265. Where the scheme of the will would be defeated by allowing dower to the widow, she is put to her election. Dodge v. Dodge, 10 Abb. 401. There being no provision in lieu of dower in a will, although the testator intended to have the realty converted into personalty, yet he could not by this means cut off his widow's right of dower any more than he could by sale in his lifetime. Parker v. Linden, 9 St. Rep. 305. A devise to the testator's widow of the uninterrupted use and occupation of real and per- sonal property of the testator till the youngest child arrives at the age of twenty-one does not put the widow to her election. Bond V. McNiff, 9 J. & S. 43. Where a husband loans money and takes a note therefor, payable to the order of himself and wife, and thereafter makes a will containing a devise expressly in lieu of dower, and of all claims upon his estate, if the note remains un- paid at the time of his decease, the widow is entitled thereto in addition to the testamentary provision. She is not put to her election. Sanfordv. Sanford, 58 N. Y. 69. To put a widow to an election between her dower and a provision by will there must appear an intent to exclude the right of dower either by express words or by manifest implication. Leonard v. Steele, 4 Barb. 20; Lasher v. Lasher, 13 Barb. 106. Where a will, after directing payment of debts, funeral expenses and so forth, gave to the wife during her life the " rents, income, interest, use and occupancy " of all his estate, real and personal, upon condition that she keep the buildings and personal property insured, pay all taxes and assessments, and keep the estate in good repair, held, the provision was inconsistent with a dower right and so must be construed as in lieu of dower, and the widow having accepted the provision so made, that she could not thereafter claim dower. Matter of Zahrt, 94 N. Y. 605. Dower is never excluded by a provision for the wife except by express words or necessary im- plication. Where there are no express words there must be on the face of the will a demonstration of the intent of the testator that the widow shall not take both dower and the provision. DOWER. 297 Art. I. The Right of Dower. Such demonstration is furnished only where there is a clear incompatibility arising on the face of the will between a claim of dower, and a claim to the benefit of the provision. The inten- tion to put the widow to an election may not be inferred from the extent of the provision, or because she is a devisee for life or in fee, or because it might seem to the court unjust, as a family arrangement, to permit her to claim both, or because it might be inferred that, had the attention of the testator been called to it, he would have expressly excluded dower. Konvalinka v. Schlcgcl, 104 N. Y. 126; distinguishing Savage v. Biirnham^ 17 N, Y. 561, and Tobias v. Kctchuni, 32 N. Y. 319. But where there is a manifest incompatibility between the bequest to the widow and dower, even though there is no express provision in lieu of dower, the widow cannot take both and is put to her election. Asche v. Asche, 113 N. Y. 235, citing Vcriion v. Vernon, 53 N. Y. 351, and cases supra. Although dower is favored by the courts, it is never at the cost of a disregard of express provisions. Nelsoji v. Brown, 144 N. Y. 384. Where the wife of a lunatic, in consideration of about one-third of her husband's property, released her inchoate right of dower in all her husband's property, held, that, as she received a pecu- niary consideration therefor, it was in lieu of dower, and as she had retained the provision, she must be deemed to have kept it in lieu of dower. Jones v. Fleming, 104 N. Y. 418. The elec- tion which, under the statutes, the widow is deemed to have made by failing within one year to enter upon lands or commence proceedings, is not absolutely conclusive against her so as to pre- vent her being relieved therefrom when she has been induced to omit such election by fraudulent representations. The statute deems the election to take place only when provision has been actually made for her by will. If, by reason of the insolvency of the estate, the provision fails, she is not deemed to have made an election. Akin v. Kellogg, 39 Hun, 252, 119 N. Y. 441. The widow cannot retain possession after the forty days of quarantine have expired, until dower is assigned; she must pro- ceed for that purpose. Jaekson v. Donaghy, 7 Johns. 247; Corey V. People, 45 Barb. 263. It was held in White v. Kane, 51 Superior, 295 ; S. C. 7 Civ. Pro. R. 267, that where testator devises all his real estate to his wife, charged generally with the payment of debts, but the will did not 298 DOWER. Art. I. The Right of Dower. declare the devise to be in lieu of dower, the widow was not bound to elect, and the sale of the real estate by her and her claim of dower to be paid out of the proceeds of the sale were not inconsistent. But where the widow has accepted a benefit under the will, she cannot be allowed to disappoint it, but must concede full effect to its dispositions ; she cannot where she has elected to take the benefit of the provisions of the will, retain such benefits and be entitled to dower. Lee v. Tower, 124 N. Y. 370. To the same effect is Matter of Nagel, 35 St. Rep. 245, which also holds that possession of property, the income of which was devised the widow in lieu of dower, does not constitute " an entry upon the lands to be assigned to her for dower.'" An election by a widow to take her dower from the proceeds of the sale of the hotel of which the will had given her one-third of the profits, and which she had managed for three years, was held to have been made too late as against the claims of credit- ors. Matter of Nagel, 35 St. Rep. 245, 12 Supp. 707. Where a widow had accepted the provisions of a will in her favor, expressed to be in satisfaction of her dower, the fact that a portion of the provisions in her favor is ineffectual, will not entitle her to dower in the lands embraced in the invalid provi- sion if she retains the other benefits conferred by the will and does not seek to avoid her election. Lee v. Tozver, 124 N. Y. 370, 36 St. Rep. 344, modifying and affirming 34 St. Rep. 829, 12 Supp. 240. A bequest made to and accepted by a widow in lieu of dower is held by her by right of purchase and is not chargeable with debts of the testator. Dunning v. Diuining, 82 Hun, 462, 31 Supp. 719, 64 St. Rep. 397. A devise to testator's wife of the use for life of his estate to be " enjoyed, accepted and received by her in lieu of dower, and in addition to what she would have as dowress if this devise was not so made to her," is one in lieu of dower and an acceptance thereof forfeits the right to dower. Nelson v. Broiun, 144 N. Y. 384, 39 N. E. Rep. 355, 63 St. Rep. 697, affirming 66 Hun, 311, 49 St. Rep. 562, 20 Supp. 978. Where the provisions of a will are inconsistent with the claim of dower, the widow is put to her election, although the legacy to her is not declared to be in lieu of dower. A release of dower DOWER. 299 Art. I. The Right of Dower. made at the request of the widow's co-executors, will not be pre- sumed fraudulent where the co-executors were not personally interested in the matter, were not acting as trustees for her, were not lawyers, and it is not shown that any false statements were made to her. Ferris v. Ferris, 10 Misc. 320, 63 St. Rep. 237, 30 Supp. 982. A widow's claim for dower as well as her right to other provi- sions in a will is not barred by accepting the provisions of the will, unless they are declared to be in lieu of dower, or to permit her to enjoy both would interfere with the other dispositions and manifest intention of the will. Matter of Smith, i Misc. 269, 22 Supp. 1067. In Grayv. Gray, 5 App. Div. 132, the rule is reiterated that the right of dower is favored and never excluded by a provision for the wife except by express words or by necessary implication, and that a widow cannot be put to an election between a testa- mentary provision and her dower unless it is clear to a demons- tration that the testator intended she should elect. A provision in a will directing the executors to distribute the estate to the widow and children in such manner and at such times as they should judge to be for the best interest of the widow and children, does not put the widow to her election ; but she is entitled to dower in addition to the provision made for her. Conner V. Watson, i App. Div. 54, ^y Supp. 71, 72 St. Rep. 224. Sub. 5. How Dower is Released or Barred. § 1604 ok Code. Laws i8g6. Chap. 547, §§ 186, 187. § 1604. Action barred by assignment of dower. The acceptance, liy a widow, of ao assignment of dower, in satisfaction of her claim upon the property in question, bars an action for dower, and may be pleaded by any defendant. Sections 186 and 187 of chap. 547, Laws 1896, read as follows: § 186. Divorced woman may release dower, A woman who is divorced from her husband, whether such divorce be abso- lute or limited, or granted in his or her favor by any court of competent juris- diction, may release to him, by an instrument in writing, sufficient to pass title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such real property, and such as he shall there- after acquire. 300 DOWER. Art. I. The Right of Dower. § 187. Married vroraan may release dowrer by attorney. A married woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same. The heir may voluntarily assign the widow's dower; the admeasurement only fixes the location and extent, it does not confer the right. RiitJierford v. Graham, 4 Hun, 796. Mesne profits were not recoverable by the widow under the Revised Statutes until the assignment of dower. Kyle v. Kyle^ 6j N. Y. 400. A parol assignment of dower, followed by immediate occu- pation, is valid and defeats the seizin of the heirs. Gibbs v. Estey,^2 Hun, 266. Where there is an outstanding life estate in the widow of a former owner, the widow of one of the heirs of the latter, upon the termination of such life estate, is entitled to an assignment of dower although she has joined in sales of the real estate and received her proportion of the assets. Aik- man v. Harsell, 63 How. no. Where the wife gave a release of dower to a divorced husband, held, valid against a mortgagee with notice of the fact ; Savage v. Crill, 19 Hun, 4, affirmed, 80 N. Y. 630 ; but, during coverture, a married \yoman cannot alien or bind her right of dower as .such to a stranger; Marvin v. Smith, 46 N. Y. 571 ; Merchants Bank V. Thompson, 55 N. Y. 7; Elmendorfv. Lockzuood, 57 N. Y. 322; or to her husband. Graham v. Van Wyck, 14 Barb. 531 ; White V. Wager, 25 N. Y. 328; Winans v. Peebles, 32 N. Y. 423. A wife has no estate in the lands of her husband during his life which she can convey. Her inchoate right of dower is but a contingent claim, incapable of transfer by grant or conveyance, but susceptible only, during its inchoate state, of extinguishment. Such an extinguishment can only be effected by a conveyance to the grantee of the husband. Where, therefore, the wife joins with the husband in a conveyance of his lands, this does not con- stitute her a grantor of the premises, or vest in the grantee any other or greater estate than there is derived from the conveyance of the husband. Witthaiis v. Schack, 105 N. Y. 332. The wife cannot effectually release her right of dower to a stranger; a release to one not in possession of or having a vested right in the premises, is void. The fact that the instrument runs to the chil- dren of the husband does not effect a release. A release to her husband would not be valid ; she can only release by joining in DOWER. 301 Art. I. The Right of Dower. conveyance with her husband. Armstrong v. Armstrong, i St. Rep. 529. The widow of a vendee, who has paid part of the purchase-money for lands, is entitled to dower subject to the lien of the vendor for the purchase-money, and with the equitable right to have her husband's personal estate applied on the pur- chase-money. WilliajHS V. Kinney, 43 Hun, i. The court will not revive a satisfied mortgage for the purpose of limiting the widow's dower to the remaining equity. Everson v. McMullcn^ 42 Hun, 369. K feme covert is not barred of her right of dower by joining with her husband in a conveyance if she were a minor at the time cf the acknowledgment. Priest v. Cum:niiigs, 16 Wend. 617; Sanfordv. McLean, 3 Paige, 117; Cunningham w. Knight, i Barb. 399; SJierman v. Garfield, i Den. 329. But where a married woman of full age unites with her hus- band in a conveyance of real property in which she is entitled to dower, it operates as an extinguishment of her right not only as to the grantee and his successors in interest, but also as to third persons. Elmendorf v. Lockwood, 4 Lans. 393 ; S. C. 57 N- Y. 322; Gillilan v. Szvift, 14 Hun, 574. A sale under a judgment obtained before the marriage will divest the wife's right of dower. Sanford v. MsLeajz, 3 Paige, 1 17. But where a husband has con- veyed his real estate in trust, a subsequent mortgage executed by himself and wife, in which the trustee did not join, does not affect the wife's right of dower. Marvin v. Smith, 4.6 N. Y. 571, Where the widow received compensation for her dower in other lands, which she accepts as a satisfactory equivalent, she cannot claim dower, especially after lapse of time in which the lands as to which she claims dower have been improved. Jones v. Poivell, 6 Johns. Ch. 194. Where, on a sale under a surrogate's oder, the executrix and widow, with knowledge of the sale, remained silent, she was held estopped as to dower, the terms of sale hav- ing been for a clear title. Dougherty v. Topping, 4 Paige, 94. And where a testator, by will, authorized his executors to sell his real estate and allow the widow the use of one-third of the proceeds of the sale, and on such sale the widow accepted and enjoyed the proceeds of the sale for a number of year^, held, she was estopped from setting up any claim to dower in the premises in the hands of an innocent grantee who was permitted to receive title in her presence and with the assurance that her dower was 302 DOWER. Art. I. The Right of Dower. extinguished, her acts operate as an estoppel. Wood v. Scely, 32 N. Y. 105. Sale in partition extinguishes the inchoate right of dower of the wife, whether she be an adult or an infant. Jack- son V. Edwards, 7 Paige, 386. But not unless she is a party to the action. Van Gcldcr v. Post, 2 Edw. 577. A judgment against a husband, recovered after marriage, will be a lien subordinate to the wife's right of dower; such right attaches to a surplus in the same manner that judgments do. N. Y. Life his. Co. v. Mayer, 12 St. Rep. 119. The wife must also be a party in foreclosure, in order to bar her dower. Mills v. Van Voorhis, 20 N. Y. 412. Where the wife agreed to accept an annuity in satisfaction for her mainte- nance and dower, if the agreement is violated by the husband, dower is not barred. Day v. West, 2 Edw. 592. An ante-nuptial agreement for a settlement not carried into effect by the husband in his lifetime, is not a bar of the wife's dower. Pierce v. Pierce, 9 Hun, 50; S. C. 71 N. Y. 154. Nor is an agreement with her husband that, in consideration of her enjoyment of her separate property, she should relinquish dower, a bar. Totvnsend v. Tozun- send, 2 Sandf. 711. A widow's receipt for years of one-third of the rents reserved on her husband's demise, will not bar her dower. Ellieott v. Mosier., 7 N. Y. 201. A statutory foreclosure and sale under a purchase-money mortgage bars the wife's right of dower, although she did not join in the mortgage. Brackett v. Bauni, 50 N. Y. 8. The recital that a mortgage was given for purchase-money, if untrue in fact, will not bar the wife's right of dower. Taylor V. Post, 30 Hun, 446. A quitclaim or release by a married woman to a stranger to the title is insufificient to divest her of htM- right of dower. Merchants' Bank v. TJionipson, 55 N. Y. 7. But it seems an effectual release of dower may be made to a ten- ant for life, remainderman or other owner of less than the legal fee. Elmendorf v. Lockiuood, 57 N. Y. 322. Dower cannot be barred by the wife's agreement, in articles of separation, to release her dower in her husband's land, although she accepts the pecuniary provision thereby made for hej- mainte- nance. Guidet v. Broivn, 3 Abb. N. C. 295. The dower of a wife in mortgaged premises is not barred by a foreclosure in which the only allegation was that she claimed an interest subse- quent to the mortgage, when she was the wife of the mortgagor DOWER. 303 Art. I. The Right of Dower. when the mortgage was executed. Ocujiipangh v. Wing, 12 Week. Dig. 566. A wife of a part owner, who was a party in partition, is barred by the decree, although the husband died before judgment. Jordan v. Va)i Epps, 85 N. Y. 427. But a partition in which the widow appeared and claimed dower, but no decree was made granting dower to her, was held not a bar. Matter of Hughes, 3 Redf. 18. Where a deed from husband to wife is declared to be fraudu- lent as to his creditors, and a sale is ordered, this does not divest her inchoate right of dower; the court cannot direct a payment to her out of the proceeds, of the estimated value of her interest. Loivry v. Smith, 9 Hun, 514. A widow may maintain an action to set aside a deed of trust for the benefit of creditors, executed by himself and her husband, on the ground of fraudu- lent representations. Witthaus v. ScJiack, 24 Hun, 328. Where a deed is declared void, the release by the grantor's wife of her right of dower fails, as being to a stranger to the title. Haniiiwnd v. Pennock, 5 Lans. 358; S. C. affirmed, 61 N. Y. 145. The provisions of the Revised Statutes that no judgment or decree procured against the husband and no laches or default of his shall prejudice the wife's right to dower, do not apply to a judgment recovered against the wife. Feitner \. Hoeger, 15 St. Rep. 377. Where husband and wife were tenants by entirety and were divorced in an action brought by the husband, who remarried, it was held that the effect of the divorce was to constitute the ten- ancy only in common and that the second wife was entitled to dower in the husband's one-half of the premises. Stelz v. Sehreek, 32 St. Rep. 133. The statute authorizing the sale of land in an action to ad- measure dower, does not affect inchoate right of dower in the wife of the heir, if she is not a party to the action for the ad- measurement of the dower of the widow of the ancestor. Jonrdan v. Haran, 56 Supr. Ct. 185 ; s. c. 18 St. Rep. 858, 3 N. Y. Supp. 541. As to rights of the widow in a peculiar case, see Everson v. McMullcn, 113 N. Y. 293. A release executed by a wife in connection with her husband's deed to a purchaser, although if made to a stranger would have been void, is in such case valid to free the premises from her dower right. Irving v. Campbell, 18 St. Rep. 966. 304 DOWER. Art. I. The Right of Dower. Plaintiff's husband was the owner of an interest in certain real property, subject to a mortgage given by his grantors ; such interest was sold in bankruptcy proceedings to defendants, subject to said mortgage, and also to plaintiff's inchoate right of dower; defend- ants refused to pay interest on the mortgage for the purpose of compelling a foreclosure in order to cut off plaintiff's right of dower, and on the sale purchased it for the amount of the mort- gage ; held, that defendants owed a duty to plaintiff to apply the fund left in their hands to the payment of the mortgage, so as to relieve her right from extinguishment by a foreclosure and sale; that their purchase at the sale was inconsistent with their duty to her, and, therefore, that the judgment and purchase were not a bar to her recovery of dower. Miuiroe v. Crouse, 36 St. Rep. 772. A wife acquires no inchoate right of dower in lands inherited by her husband if they are estates in remainder and not in pos- session, and she has no rights therein which interfere with her husband in dealing with such estates, and he may subject them to such liens as he may choose. Her claim can only be asserted through her husband's title to the lands; if her title in the real estate came to him subject to a lien, her dower therein is also sub- ject to such lien. Clark v. Clark, 84 Hun, 362. A settlement of an inchoate right of dower entered into with the advice of counsel, held a bar to an action for admeasurement of dower. Spannocchia v. Loew, 87 Hun, 167, 67 St. Rep. 736, 33 Supp. 1050. A widow has no dower in real estate of a partnership of which her husband was a member. Riddellv. Riddell, 85 Hun, 482, 33 Supp. 99, 65 St. Rep. 702; Dawson v. Parsons, lo Misc. 428, 63 St. Rep. 320, 31 Supp. 78. A right to dower cannot be asserted with respect to lands pur- chased with the husband's money, but not conveyed or agreed to be conveyed to him. Phelps v. PJielps, 143 N. Y. 197, 38 N. E. Rep. 280, 62 St. Rep. 156, reversing 75 Hun, 577. The act of the committee of a lunatic in joining with her husband in executing a deed, does not extinguish her inchoate right of dower. Matter of Dunn, 64 Hun, 18, 45 St. Rep. 830, 22 Civ. Pro. R. 118, 18 Supp. 723. A release of dower made directly to the husband does not divest the wife's right. Wightman v. Schliefer, 45 St. Rep. 698, 18 Supp. 551. DOWER. 305 Art. I. The Right of Dower. But under chapter 300 of the Laws of 1878, providing that a married woman may execute a power of attorney in the same manner as if she were single, the wife may give a power of attorney to her husband authorizing him to execute a release of her right of dower. Wronkow v. Oakley, 133 N. Y. 505, 45 St. Rep. 882, 28 Abb. N. C. 409, reversing 64 Hun, 217, 45 St. Rep. 835, 19 Supp. 51. Where it appeared that in the lifetime of her husband, who was a lunatic, a woman had, for a valuable consideration, executed to his committee a release of her dower right and had retained the consideration for seventeen years after her husband's death, without making any demand for admeasurement of dower, it was held her right to dower was barred. Dorenius v. Doremus, 66 Hun, III, 49 St. Rep. 800, 21 Supp. 13. Where a married woman released her inchoate right of dower for a money consideration prior to her husband's death, she can- not after that event maintain an action for admeasurement of dower on the ground of fraud in procuring the release, without paying or tendering the amount received by her. Spannochia v. Loew, 87 Hun, 167, 33 Supp. 1050, 67 St. Rep. 736. An ante-nuptial contract in order to bar a woman's dower, must be upon a valuable consideration and not be a merely nominal provision. Graham v. Graham^ 6y Hun, 329, 51 St. Rep. 789, 22 Supp. 299. It was further held on appeal, 143 N. Y. 573, 38 New Eng. Rep. 722, that where it appeared that a release of dower was not a condition of the engagement, that no negotia- tion in relation thereto was had prior to the execution of the in- strument, that the husband stated he wanted it arranged so that he could buy and sell real estate without interference, and refused to marry unless this was done, but did not explain that it would be a release of dower, that no consideration therefor was given and no provision made for her support and that she acted without the aid of counsel, that she was entitled to her dower right. The foreclosure of a purchase-money mortgage does not cut off the inchoate right of dower of the mortgagor's wife, unless she is made a party to the foreclosure suit, and the mortgagor who buys in the property as to her becomes merely a mortgagee in possession. Campbell v. Ellwanger, 81 Hun, 259, 62 St. Rep. 754, 30 Supp. 792. Where the wife of the owner did not join in the first of two mortgages, but joined in the second, which was foreclosed, and [Special Actions — 20.] 306 DOWER. Art. I. The Right of Dower. thereafter the first mortgage was foreclosed and purchase there- under made by the mortgagor's predecessor in title, it was held that the dower right was cut off by the first mortgage and was not revived by the second. Caldcr v. Joikins, 42 St. Rep. 38, 16 Supp. 797. The only provisions of the statute relating to the relinquish- ment of dower by a woman before marriage, are those which au- thorize her to relinquish her dower on receiving an equivalent for it by way of jointure. Ennis v. Emits, 48 Hun, 11. An ante-nuptial contract bars dower, but it will be rigidly scruti- nized and held void if procured by deception or false pretences; the burden of showing good faith is clearly on the husband, where the provision made is disproportionate and inadequate. Pierce v. Pierce, 71 N. Y. 154. See Curry v. Curry, 10 Hun, 366. Sub. 6. How Dower Affected by Divorce. Laws 1896, Chap. 547, §§ 176, 182. § 176. When dower barred by misconduct. In case of a divorce, dissolving the marriage contract, for the misconduct of the wife, she shall not be endowed. g 182. When provision in lieu of dower is forfeited. Every jointure, devise and pecuniary provision in lieu of dower is forfeited by the woman for whose benefit it is made, in a case in which she would forfeit her dower; and on such forfeiture, an estate so conveyed for jointure, or de- vise, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the de- termination of her interest therein, by her death. Provision is also made by sections 1759 and 1760 of the Code with reference to the dower interest of the wife in case of a divorce obtained by her or her husband. These sections are sub- stituted for the provisions of 2 R. S. 146, ^§ 43, 45, 46 and 47. Under the Revised Statutes the adultery of the wife bars dower only where there is a decree of divorce. Reynolds v. Reynolds, 24 Wend. 193; Cooper v. Whitney, 3 Hill, 95 ; SeJiiffer v. Pruden, 7 J. & S. 167; Pitts V. Pitts, 52 N. Y. 593; Pundlc v.Van Inivegan, 9 Civ. Pro. R. 328. The forfeiture is not a consequence of the offence but of the judgment founded thereon ; and where, in an action of divorce a vinculo, brought by a husband against the wife, the referee found the wife guilty of adultery, but also found the husband guilty of the same offence, and a judgment was en- DUNVER. 307 Art. I. The Right of Dower. tered dismissing the complaint, held that the wife had not lost her right of dower. ScJiiffcr v. Priidcn, 64 N. Y. 47. A divorce a uicnsa ct tJioro does not bar the right of dower. Day V. West, 2 Edw. Ch. 292. A divorce dissolving the marriage for the husband's adultery does not bar the wife's right of dower. An absolute divorce, for causes arising after the marriage, is governed by statute ; it is prospective in its operation, and has no other effect upon the marriage relation than such as is declared by statute. \Yait v. Wait, 4 N. Y. 95 ; Forrest v. Forrest, 6 Duer. 102. The .same rule applies in case of limited divorce. Craiu v. Cavana, 62 Barb. 109. A marriage within this State, of a woman with a man who has been divorced for his own adultery, the former wife being living at the time of such marriage, is void, and she is not entitled to dower in his property. Cropsy v. Ogden, 1 1 N. Y. 228. A wife who has obtained a divorce in her favor is entitled, not- withstanding her marriage, upon her former husband's death, to dower in his real property, and to one-third of his personal prop- erty; Van VoorJiis x. Brintnall, 23 Hun, 260, reversed on other grounds, 86 N. Y. 18; but a woman divorced a vineulo for the adultery of her husband, is not entitled to dower in lands of which he became seized after divorce ; otherwise, however, as to lands of which he was seized during coverture and previous to the divorce. Kade v. Laubcr, 16 Abb. (N. S.) 288. The provision of § I759» subdivision 4, is as follows: " Where final judgment is rendered dissolving the marriage, the plaintiff's inchoate right of dower in any real property of which the defendant then is or was theretofore seized, is not affected by the judgment." The statute of another State declaring the effect of the desertion by a wife from her husband to be to bar her dower, can have no force or effect in this State. Riindle v. l^an Imvegan, 9 Civ. Pro. R. 328. The dower of the wife divorced in another State is to be con- strued by the laws of this State, and to deprive her of dower here, the misconduct provided for by the Revised Statutes must be adultery, and where the decree was based upon the abandonment of her hu.sband, she does not forfeit her right. ]''an Cleafv. Burns, 133 N. Y. 540, 44 St, Rep. 98, reversing 62 Hun, 250, 42 St. Rep. 26, 16 Supp. 667. Willful desertion and absence of a wife from her husband, for 3o8 DOWER. Art. 2. Limitation of the Action by Lapse of Time. which he has procured an absolute divorce, in another State, which is vaHd, and effectual against the wife, will deprive her of dower. Van Cleafw. Burns, 43 Hun, 461. A woman is entitled to dower in lands acquired by her husband after her divorce from him, where she retains her right to dower, he being the party in fault. Kade v, Lauber, 16 Abb. (N. S.) 288. Where a marriage has been annulled by a judicial decree upon the ground that when it was contracted the husband had another wife living, who had absented herself for more than five successive years immediately preceding the second marriage, without being known by him to be living, although until it was annulled it was voidable only and not void, the wife is not entitled to dower in the real estate owned by the husband at the date of the decree. Price V. Price, 124 N. Y. 589, reversing 33 Hun, 76, and distin- guishing Wait V. Wait, 4 N. Y. 95 ; Jones v. Zoller, 29 Hun, 551, 32 Hun, 280, 37 Hun, 229, 104 N. Y. 418; Brower v. Bowers, i Abb. Ct. of App. Dec. 214; Griffin v. Banks, 37 N. Y. 621. Sub. 7. Right of Widow to Quarantine and Crops. Laws 1896, Chap. 547, §§ 184, 185. § 184. Widow's quarantine. A widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same; and in the meantime she may have her reasonable sustenance out of the estate of her husband. § 185. Widow may bequeath a crop. A woman may bequeath a crop in the ground of land held by her in dower. A widow is entitled to grains and fruits ungathered at the time of the assignment of dower, but if dower has not been assigned and she takes them, she is liable to the heir and cannot retain a third, either as dowress or distributee. Kain v. Fisher, 6 N. Y. 597, cited Matter of Chamberlain, 140 N. Y. 392; see Clark v. Bailor/, I T. & C. 58. ARTICLE n. Limitation of the Action by Lapse of Time. § 1596. 55 1596. [Am'd, 1882.] Limitation of action for dower. An action for dower must be commenced by a widow, within twenty years after the death of her husband; but if she is, at the time of his death, either: I. Within the age of twenty-one years; or DOWER. 309 Art. 2. Limitation of the Action by Lapse of Time. 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time limited by this section. And if at any time, before such claim of dower has become barred by the above lapse of twenty years, the owner or owners of the lands subject to such dower, being in possession, shall have recognized such claim of dower by any state- ment contained in a writing under seal, subscribed and acknowledged in the manner entitling a deed of real estate to be recorded, or if by any judgment or decree of a court of record within the same time and concerning the lands in question, wherein such owner or owners were parties, such right of dower shall have been distinctly recognized as a subsisting claim against said lands, the time after the death of her husband, and previous to such acknowledgment in writing or such recognition by judgment or decree, is not a part of the time limited by this section. Demand of dower before suit brought is not necessary. Jack- son V. Churchill, 7 Cow. 287; Ellicott v. Mosier, 7 N. Y. 201. The widow's omission to demand her dower will not prejudice her claim to damages. Hitchcock v. Harrington, 6 Johns. 290. Under the former Code an action would lie to have dower ad- measured and for the rents and profits. Brown v. Brown, 31 How. 481. It is no objection to the action that the party was not in actual possession of the lands out of which dower is claimed, or that six months have not elapsd since the death of her husband. Townscnd V. Townsend, 2 Sandf. 711. It was said by Chancellor Kent (Commentaries, vol. 4, p. 72), that the jurisdiction of Chancery over the claim of dower has been thoroughly examined, clearly asserted and definitely established. Hazen v. Thurber, 4 Johns. Ch. 604; Badgley v. Halsey, 4 Paige, 98; Swain v. Perrine, 5 Johns. Ch. 482; Hale v. James, 6 Johns. Ch. 258; Russell v. Austin, I Paige, 192; Bell v. The Mayor of New York, 10 Paige, 49. The Statute of Limitations cannot be interposed as a bar where the widow has been in possession of her dower either with or without suit, and has been subsequently ousted. Sayre v. Wisner, 8 Wend. 661 ; Payne v. Becker, 87 N. Y. 153; Saylcs v, Naylor, 5 St. Rep. 816. The receipt by the widow of one-third of the rent of the real estate, in lieu of dower, for several years after the death of her husband, does not constitute an as- signment of dower or bar her action. Aikman v. Harsell, 98 N. Y. 186. 310 DOWER. Art. 3. The Remedy and the Parties to the Action. ARTICLE III. The Remedy and Parties to the Action. §§ 1597, 1598, 1599. § 1597. Against whom action to be brought. Where the property, in which dower is claimed, is actually occupied, the occupant thereof must be made defendant in the action. Where it is not so occupied, the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action. § 1598. Who may be joined as defendants. In either of the cases specified in the last section, any other person, claiming title to, or the right to the possession of, the real property in which dower is claimed, may be joined as defendant in the action. § 1599. Id. ; where defendants claim in severalty. In an action to recover dower, in a distinct parcel of real property of which the plaintiff's husband died seized, or in all the real property which he aliened by one conveyance, all the persons in possession of, or claiming title to, the prop- erty, or any part thereof, may be made defendants, although they possess or claim title to different portions thereof in severalty. The Supreme Court, of course, by virtue of its general powers, has jurisdiction in actions for dower — ^ 217, Code of Civ. Pro. — and the county courts — § 340, subd. i. The provisions giving a surrogate jurisdiction in matters of dower were not re-enacted, that remedy being regarded by the codifiers as superfluous. It is said by the codifiers that the present chapter is a substitute for the four methods heretofore existing, to which a widow claim- ing dower might resort, viz.: i. An action of ejectment for dower brought against the person in possession, in which after her title has been established, her portion was admeasured. 2. Proceedings for the admeasurement of dower to be taken in the Supreme Court, a County Court or a Superior City Court, or be- fore a surrogate against the tenant of the freehold, and to be fol- lowed, if necessary, by an action of ejectment for the portion so admeasured. 3. A suit in equity in which both the right of the plaintiff and the portion to be assigned her were to be determined. 4. An action for the admeasurement of dower. The inchoate right of dower is deemed a subsisting and valuable interest. Stack V. Ward, 30 Hun, 555. In an action by a widow for an assignment of dower and for her just proportion of the rents and profits thereof, all the heirs-at-law DOWER. 311 Art. 4. Pleadings and Miscellaneous Matters of Practice. are proper parties to the action, although it is alleged that part only of the heirs-at-law have been in possession and have received the rents and profits of the whole premises. Va>i Name v. Van Name, 23 How. 247. But only such parties as have present in- terests in the real estate, which is the subject of an action to admeasure dower, are necessary parties thereto. O'Connor v. Garrigan, 17 Week. Dig. 302. Ejectment for dower will lie against a tenant who had an estate less than a freehold. A widow entitled to dower in a block of city lots may maintain the action against the occupant of a single floor of a store erected on one lot, which floor the occupant has hired for one year. Ellicott v. Mosicr, 7 N. Y. 201. The effect of § 1597 is to prevent an action for dower being brought except against a person who comes within one of the categories stated in the section either as occupant, or one exercis- ing acts of ownership or claiming title to the premises. Connolly v. Newton, 85 Hun, 552. ARTICLE IV. Pleadings and Miscellaneous Matters of Practice. §§ 1605, 1606, 1616, 1625. § 1605. Collusive recovery not to prejudice infant. Where a widow, not having aright to dower, recovers dower against an infant, by the default or collusion of his guardian, the infant shall not be prejudiced thereby; but when he comes of full age, he may bring an action of ejectment against the widow, to recover the property so wrongfully awarded for dower, with damages from the time when she entered into possession, although that is more than six years before the commencement of the action. § 1606. Complaint, The complaint, in an action for dower, must describe the property, as pre- scribed in section 151 1 of this act; and must set forth the name of the plaintiff's husband. § 1616. Appeal not to stay execution, if undertaking is given. An appeal from a final judgment, awarding to the plaintiff possession of the part admeasured and laid off to her, does not stay the execution thereof, unless the court, or a judge thereof, grants an order directing such a stay. Such an order shall not be granted, if an undertaking is given on the part of the re- spondent, with one or more sureties, approved by the court, or a judge thereof, to the effect that, if the judgment appealed from is reversed or modified, and restitution is awarded, she will pay, to the person entitled thereto, the value of 312 DOWER. Art. 4. Pleadings and Miscellaneous Matters of Practice. the use and occupation of the part so admeasured and laid off to her, or of the portion, restitution of which is awarded, during the time she holds possession thereof, by virtue of the judgment. § 1625. Certain provisions of article second made applicable. The provisions of article second of this title, relating to a sale made as pre- scribed in that article, and to the distribution, investment and care of the pro- deeds, apply, as far as they are applicable, to a sale made as prescribed in this article, and to the distribution of the proceeds of a sale, as prescribed in the last section. By subdivision 6, of § 791, an action for dower is preferred where the plaintiff makes proof by affidavit to the satisfaction of the court or a judge thereof, that she has no sufficient means of support aside from the estate in controversy. Under § 968, an issue of fact in such an action must be tried by a jury. Taxes, assessments and water rates are deemed expenses of sale in actions for partition, foreclosure and dower and must be paid as such. See § 1680 as to right of reversioner to bring action after tenant's default. Judgment for dower may be enforced by execution, §1240. Rights may be submitted to arbitration, § 2365. Regula- tions as to sale of dower interest, gross sum to be paid in lieu of dower in partition and other provisions as to dower in that action, §§ 1567-1571- Effect of conveyance on sale of real estate for pay- ment of debts on dower interest, § 2778. Distribution to dower- ess in such case, and investment of funds set apart for dower, §§ 2793-2795. Sections 1647 and 1649 regulate the action to com- pel determination of claims to real property when brought to de- termine widow's dower. Sections 616 and 617 provide for the security to be given after verdict on granting injunction to stay proceedings in an action for dower. Effect upon dower of sale of real estate of incompetent persons and proceedings thereon, §§ 2345-2364. Release under that title has same effect as if wife had joined in conveyance with husband, § 2358. Where in pro- ceedings supplementaiy to execution against a widow, she con- veyed dower not assigned to her to a receiver, who complied with section 2468, held the receiver could maintain the action to have the dower admeasured. Payfie v. Becker, 87 N. Y. 153; Sayles V. Naylor, 5 St. Rep. 816. As to action by owner to determine widow's claim to dower, see sections 1647, 1648. A complaint asking to have dower set off under the Revised Statutes was not objectionable on the DOWER. 313 Art. 4. Pleadings and Miscellaneous Matters of Practice. ground that defendant was not in the actual possession of the lands, or that six months had not elapsed since the death of the husband. TownsendY. Townsend, 2 Sandf. 711. Where the complaint, in an action brought to have dower of defendant, a widow, set off, admits the right of dower, it is not necessary to allege defendant claims dower ; such an allegation is only necessary where plaintiff denies defendant's right and seeks an adjudication barring her. Linden v. Doetsch, 40 Hun, 239. Where in the complaint the description of the premises does not conform to the requirements of the Code, it should be amended. Peart Y. Peart, 18 St. Rep. 456. The complaint in an action for dower in which it is alleged that the husband of the doweress had executed a deed of the premises to one of the defendants, and she has not joined in the convey- ance, but which fails to allege that the defendant was either an actual occupant or a person exercising acts of ownership, or one claiming a title or interest in the premises at the time of the commence- ment of the action, is demurrable. Connelly v. Newto7i, 85 Hun, 552. Under "Action to compel the determination of a claim to real property " provision is made for an action against a woman hav- ing a right of dower in the whole or a part of property to compel the determination of her claim, and for the method of carrying on the action and proceedings to be had therein. Precedent for Complaint. SUPREME COURT — County of New York. MARY ANN ROBINSON, Plaintiff, agst. ROBERT COVERS, Individually, and as Sole Executor and Trustee under the Last Will and Testament of ANTHONY ROBINSON, Deceased, and Others, De- fendants. 138 N. Y. 425. The amended complaint of Mary Ann Robinson, the above-named plaintiff, by John B. Pine, her attorney, respectfully shows to this court: I. That heretofore, to wit: On or about the 19th day of April, 1885, at the City of Brooklyn, County of Kings, and State of New York, 314 DOWER. Art. 4. Pleadings and Miscellaneous Matters of Practice. the plaintiff intermarried with one Anthony Robinson, the testator above named. 2. That the said Anthony Robinson died at the City of New York on the 30th day of December, 1890, leaving a last will and testament and codicil, copies of which are hereto annexed and made a part of this complaint, which said last will and testament and codicil were admitted to probate by the surrogate of the City and County of New York as a will of real and personal property on or about the 24th day of January, 1891; that letters testamentary upon the estate of said Anthony Robinson were by said surrogate on the 26th day of January, 1891, granted unto Robert Covers, the defendant above named ; that said defendant Robert Covers alone qualified as the executor under said will, as the plaintiff is informed and verily be- lieves, and alone accepted the trust created thereby. 3. That at the time of the decease as aforesaid, the above-named Anthony Robinson was seized and possessed of the following de- scribed real estate situate in the city and county of New York and more particularly described as follows: (Insert description.) being the same premises conveyed to the said Anthony Robinson by Benjamin T. Sherman, Master in Chancery, by deed dated the 17th day of August, 1843, and recorded on said day in Liber 437 of Cons, page 457 in the office of the Register in the city and county of New York. 4. Upon information and belief that upon the decease of said Anthony Robinson, the premises above described and designated as parcel ' 'A. ' ' which said premises are known by the street number of 79 Perry street, under the second clause of said last will and testament, to the children of the defendant Robert Covers, to wit: to the defendants William J. Covers, Maria Covers, Jane Covers and Esther Covers, subject to and charged with the dower and right of dower of the plaintiff therein, as the widow of said Anthony Robin- son, deceased. 5. Upon information and belief that the said premises described as parcel " A." are rented and that the following named defendants have or claim to have an interest therein as tenants, to wit: the defendants Anna Stockman, John R. Toom, James Camble, Edward Cissie and John Ray, and that the defendant Robert Covers, indi- vidually or as executor and trustee under said last will and testa- ment, has collected and is now collecting the rental of said premises due at the time of the death of said Anthony Robinson and since accruing. Wherefore the plaintiff demands judgment: I. That as the widow of said Anthony Robinson, deceased, she is entitled to dower in each and every the real property hereinbe- fore mentioned and described and that the respective rights and in- terests of the several parties hereto in said premises may be deter- mined. II. That the said dower of the plaintiff in the several lots of land and premises above mentioned and described may be set off and DOWER. 315 Art. 4. Pleadings and Miscellaneous Matters of Practice. admeasured to the plaintiff by the referee to be appointed by the ■court for that purpose or in such other way as the court may direct. III. That the said premises or so much thereof as may be neces- sary may be sold according to law and the proceeds thereof or as much thereof as may be necessary to secure the plaintiff's right of dower, may be invested under the direction of the court and the in- come arising therefrom paid to the plaintiff during the term of her natural life, or that plaintiff have leave to accept a gross sum in lieu thereof, and that the surplus, if any, be distributed among the seve- ral parties entitled thereto in proportion to their respective inter- ests, as the same may be by this court determined. IV. That the defendant Robert Govers account for the rents of said premises collected by him in his individual capacity and as ex- ecutor and trustee as aforesaid and pay over to the plaintiff the proportion of said rents to which she is entitled. V. That the plaintiff have such other and further relief in the premises as may be just and equitable, together with her costs and disbursements herein. Dated New York, the 31st day of March, 1891. JOHN B. PINE, Attorney for the Plaintiff, Precedent for Complaint. NEW YORK SUPREME COURT — Ulster County. HANNAH EVERSON, Plaintiff, agst. )■ 113 N. Y. 293. ANDREW McMULLEN, Defendant. The plaintiff, appearing in this action by G. D. B. Hasbrouck, her attorney, respectfully shows to the court: First: That the name of plaintiff's husband was Morgan Everson, late of the town of Esopus, County of Ulster, deceased; that plain- tiff is a widow, and that the said Morgan Everson, at the time of his death and during many years previous thereto, was seized in fee simple and possessed of the following described premises: (Insert description.) Second: That plaintiff is entitled to one undivided third part thereof for her life as her reasonable dower. Third: That the plaintiff, on or about the nth day of June, 1885, demanded her dower of the defendant, in the aforesaid premises, and that he refused and still refuses to assign the same to her. Fourth: That the defendant Andrew McMullen, was at the time of the commencement of this action and is now in possession and occupation of said premises and claims some title to or some right in the possession of said premises, or some part thereof, which right, if any, is subject to the plaintiff's right of dower; and the said de- fendant wrongfully and unjustly withholds from the plaintiff the possession of her said one-third part thereof as her dower. 3i6 DOWER. Art. 4. Pleadings and Miscellaneous Matters of Practice. Wherefore plaintiff demands judgment: ist. That she recover possession of one undivided third part of said premises for her life against the defendant Andrew McMullen. 2d. That the said dower of the plaintiff in the lands and premises hereinbefore described may be set off and admeasured to the plain- tiff by commissioners to be appointed for that purpose, or in such other way as the court may direct. 3d. That said widow further recover damages for the withholding of her dower from the time of the making of said demand to the amount of one-third of the annual value of the mesne profits of said property, with the interest and costs of this action. G. D. B. HASBROUCK, Plaintiff's Attorney. In ejectment for dower, after admeasurement, defendant could not controvert the title of the husband, his seizin, plaintiff's mar- riage and the death of the husband. Parks v. Hardey, 4 Bradf. 1 5. A widow's claim for dower in real estate is not subject to set-off for moneys due, nor for receipt of rents and profits of the whole of the lands in which she claims dower. Bogardus v. Parker, 7 How. 303. See Elliott v. Gibbons, 30 Barb. 498. A secret conveyance made without consideration just before marriage is void as against wife's claim of dower, and an action is maintainable to set it aside. Pomeroy v. Pomeroy, 54 How. 228; Youngs v. Carter, 10 Hun, 194. The wife need not wait until the death of the husband. Babcock v. Babcock, 53 How. 97. Where one induces another to convey property to him under a promise to pay a woman with whom the grantor was living under color of a void marriage, an amount equal to her dower right, she can en- force such promise. Spiccr v. Spicer, 16 Abb. (N. S.) 1121. Where the wife was induced to execute a conveyance on ex- change of the title to the land to be received by the husband, was taken in a third party. Held, she could recover as damages the present value of her inchoate right of dower. Douglas v. Douglas, II Hun, 406. As to when covenant by a woman to release her right of dower may be enforced by a purchaser from her husband, see Carpenter v. Carpenter, 40 Hun, 263. The order of reference to compute damages for withholding dower, which provides that the referee may determine whether such damages were taken into consideration by the commissioners appointed to admeasure dower, authorizes the referee to receive evidence as to the action and finding of the commissioners, although they made no formal report as to such damage. A judg- DOWER. 317 Art. 4. Pleadings and Miscellaneous Matters of Practice. ment in favor of plaintifT in such an action may be determined by- setting off against the costs awarded to her the costs of a refer- ence in which her claim for damages was disallowed. Swift v. Swift, 88 Hun, 551, 43 Supp. 852, 68 St. Rep. 749. In an action for dower brought by a widow against her husband's grantee, sufificiency of the land not conveyed by the husband to satisfy all claims of dower is not sufificient. Richardson v. Harms, II Misc. 254, 32 Supp. 808, 64 St. Rep. 575. In an action for admeasurement of dower where issue is taken as to the marriage of plaintiff, the defendant is entitled to a bill of particulars showing whether such marriage was ceremonial, and if so, when, where and by whom performed, and if not ceremonial, when and where it was contracted. Govin v. DeMiranda, 87 Hun, 227, 33 Supp. 753, 67 St. Rep. 426. An offer of judgment for five and a half acres of the land claimed without further description, is too indefinite. Marble v. Lezi'is, 53 Barb. 432. In an action to have dower set off, a receiver of all the rents and profits may be appointed. Eg-an v. Walsh, 11 J. & S. 402. Issue of fact must be tried by a jury unless waived. § 968, Code; Kinne v. Kinne, 2 T. & C. 393. In an action brought for dower defences were interposed and a reference to try the issues ordered. In the pleadings there was no issue as to the practica- bility of a specific portion of the premises being actually ad- measured. At the trial the referee, under defendant's objection, received evidence tending to show the fact that a distinct parcel of the property could not be admeasured to plaintiff without material injury to her interests, and directed a sale. Held, that the question of practicability of such admeasurement was not to be tried by a referee, and the direction for sale should be stricken out. In all cases, except, perhaps, where the trial is by the court, a reference must be made to ascertain whether actual admeasure- ment can be had after a decision by the referee as to the rights of the parties under the issues and before the judgment declaring such right is entered. O' Dougherty v. Remington Paper Co. 42 Hun, 192. In an action to foreclose a mortgage in which the wife of the mortgagor did not join, she was made a party, but tendered no issue as to her right of dower ; and judgment directed a sale sub- ject to her right of dower; held, that such judgment did not de- 3l8 DOWER. Art. 4. Pleadings and Miscellaneous Matters of Practice. termine her right of dower as against a purchaser at the sale or his grantee. Nelson v.Broivn, 144 N. Y. 384, 39 N. E. Rep. 355, 63 St. Rep. 697, afifiirming 66 Hun, 311, 49 St. Rep. 562, 20 Supp. 978. In an action for dower a general verdict for or against the plain- tiff should be rendered ; if not the verdict should be set aside- Vadncy v. TJwnipson, 44 Hun, i. In an action by a widow for dower there cannot be a judgment by default against infant defendants ; she must prove her case. Dwycr v. Divjer, 13 Abb. (N. S). 269. Where, in an action of ejectment for dower, it appeared that one Draper, at the time of his death and for many years previous thereto, had been her husband ; that at the time of his decease he was and for many years had been seized in fee-simple of the premises described in the complaint ; that she was entitled to one- third thereof for life as her reasonable dower, and that the defend- ant was in possession of the land and wrongfully withheld the same from her, held, that the complaint set out a good cause of action. It was not necessary to aver intestacy, the presumption is in favor of it, and any matter that would bar dower was matter of defence to be interposed by answer. Draper v. Draper, 1 1 Hun, 616. Where the wife was a party, dower was set aside in surplus on foreclosure free from costs. Hatiley v. Bradford, g Paige, 200 ; CJiurcJi V. Cliurch, 3 Sandf. Ch. 434. When the widow filed a bill for dower, and asked more than she was entitled to, not having asked an assignment of dower, neither party was entitled to costs. Russell V. Austin, i Paige, 192; Hazenv. Thurber, 4 Johns. Ch. 604; Hale w. James, 6 Johns. Ch. 258. Defendant was charged with costs because he refused to set off dower and to account for one-third of the profits, and set up defence which was overruled. Leonard v. Steele, 4 Barb. 20. Where the widow accepts a gross sum, and a sale is ordered, costs and allowances may be made to both plaintiff and defend- ant. The dower interest is to be computed on the balance.. Schierloh v. Sehierloh, 14 Hun, 572. Since the adoption of the Code of Civil Procedure, the plaintiff, in an action brought for dower, if successful, is entitled to costs of course under subdi- vision I, of § 3228 of the Code, as it is an action to recover an interest in real property, and is triable by a jury. Evcrson v. DOWER. 319 Art. 5. Interlocutory Judgment for Admeasurement of Dower. McMiilleji, 45 Hun, 578; distinguishing as decided before passage of the last nine chapters Aiknian v. Harscll, 31 Hun, 635 ; which held that there were no statutory provisions regulating costs in an action for admeasurement of dower under the Code of Civil Pro- cedure, and consequently costs in such an action are in the discre- tion of the court. Costs in an action for dower go to the success^ ful party of course. Jones v. Emery, i Civ. Pro. R. 338. ARTICLE V. Interlocutory Judgment for Admeasurement of Dower: § 1607. § 1607. Interlocutory judgment for admeasurement. If the defendant makes default in appearing or pleading; or if the right of the plaintiff to dower is not disputed by the answer; or if it appears, by the verdict, report, or decision upon a trial, that the plaintiff is entitled to dower in the real property described in the complaint, an interlocutory judgment must be ren- dered; which, except as otherwise prescribed in this article, must direct that the plaintiff's dower in the property, particularly describing it, be admeasured by a referee, designated in the judgment, or by three reputable and disinterested freeholders, designated therein, as commissioners for that purpose. Under § 1607, an action to admeasure dower will not be stayed where the right of the plaintiff to dower is not disputed, to enable a person who has come in and bought from one of the heirs, td have the dower admeasured in a partition suit subsequently brought. Rice v. Thompson, 42 St. Rep. 424. Precedent for Interlocutory Judgment. NEW YORK SUPREME COURT— Ulster County. HANNAH EVERSON, Plaintiff, agst. )■ 113 N. Y. 293. ANDREW Mcmullen, defendant. The above-entitled action having been duly brought to trial at a Circuit Court held in and for the county of Ulster at the court house in the city of Kingston, commencing November, 1885, and this action having been reached for the trial on the loth day of November, 1885, and the action having been by a stipulation duly made in open court waiving a jury trial, tried before the court with- out a jury, and said court having made and filed its decision. Now, therefore, in accordance with said decision, it is adjudged: First: That the plaintiff is entitled to dower in the equity of redemption of the premises described in the complaint herein. 320 DOWER. Art. 5. Interlocutory Judgment for Admeasurement of Dower. Second: That the plaintiff's interest as widow be and the same hereby is charged with its just proportion of the mortgage indebted- ness as created by the mortgage from Morgan Everson and wife to the Rondout Savings Bank, the mortgage from Charles M. Preston and wife to the Rondout Savings Bank, and the mortgage from Andrew McMullen to the Rondout Savings Bank be and the same is hereby recognized and allowed in ascertaining the amount. Third: That a referee be appointed by this court to admeasure plaintiff's dower and ascertain with what and how it should be charged and determine its value, etc., in accordance with the statute in such case made and provided, and report to the court with all convenient speed, that the court may take final action therein. Fourth: And that either party have liberty to apply to this court for the further order or judgment of the court, as they might advise. JACOB D. WURTS, Clerk. Precedent for Notice of Motion for Appointment of Referee SUPREME COURT — County of New York. MARY ANN ROBINSON, Plaintiff, agst. ROBERT COVERS, Individually and as Executor and Trustee, and Others, De- fendants. 138 N. Y. 425. Please take notice that upon the verdict rendered upon the trial of the above-entitled action, at a circuit of this court, held at the county court house in the city of New York on the 22d day of October, 1891, before Hon. Edward Patterson, Justice, and a jury, finding the plaintiff entitled to dower in the premises described in the amended complaint herein, and upon all the proceedings had and papers filed herein, and upon the affidavit of regularity of John B. Pine, hereto annexed, dated the 30th day of October, 1891, and upon the abstract of title and official searches to be produced upon the hearing of this motion, a motion will be made at a special term of this court to be held at the chambers thereof at the county court house in the city of New York, on the 9th day of November, 1891, at half-past ten o'clock in the forenoon or as soon thereafter as counsel can be heard, for an order adjudging that the plaintiff is entitled to an interlocutory decree herein awarding her dower in the real property aforesaid, and directing a reference to ascertain whether a distinct parcel of said real property can be admeasured and laid off to the plaintiff as tenant in dower without material injury to the interests of the parties, and further directing that if it shall appear from the report of such referee that a distinct parcel cannot be so admeasured and laid off, an interlocutory decree be entered upon the filing of such report, directing a sale of said premises by a DOWEK. 321 Art. 5. Interlocutory Judgment for Admeasurement of Dower. referee named therein, and further directing that a reference as to whether any person not a party has a lien upon the said real property or any part thereof be dispensed with and for such other and further relief as may be just and equitable in the premises. Dated, New York, 30th day of October, 1891. JOHN B. PINE, Plaintiff's Attorney. Precedent for Order of Reference. At a Special Term of the Supreme Court held at the Chambers thereof in the county court house in the city of New York, on the 27th day of November, 1891. Present — Hon. Edward Patterson, Justice. MARY ANN ROBINSON, Plaintiff, agst. ROBERT GOVERS, Individually and as \ 138 N. Y. 425. Sole Executor and Trustee Under the Last Will and Testament of ANTHONY ROBINSON, Deceased, and Others. This being an action for dower and the same having come on for trial at circuit on the 22d day of October, 1891, and a verdict having been rendered declaring the plaintiff to be entitled to dower in the real property described in the amended complaint, and the plaintiff having before the commencement of the trial, filed with the clerk consent to accept gross sum in full satisfaction and discharge of her right of dower in the said property, such consent being in writing and acknowledged in like manner as a deed to be recorded, and a copy thereof having been served upon each adverse party, who has appeared in the action, and the defendants William J. Covers, Maria Covers, Jane Covers and Esther Covers having, before the rendering of an interlocutory judgment herein, applied to the court upon notice, for an order granting them leave to pay the gross sum to which the plaintiff may be entitled in satisfaction and discharge of her dower in the property described in the complaint and therein designated as parcel "A." known as No. 79 Perry street, and the de- fendant Robert Covers, as trustee under the last will and testament of Anthony Robinson, deceased, having in like manner applied for an order granting him leave to pay the gross sum to which the plaintiff may be entitled in satisfaction and discharge of her dower in the property described in the said amended complaint as parcel "B.," known as 81 Perry street, and the said application having come on to be heard, Now, on reading and filing notices of the said several applications, and after hearing Mr. Shaw, of counsel for the defendants William J. Covers, Maria Covers, Jane Covers and Esther Covers; Mr. Nathan, of counsel for the said Robert Covers as trustee aforesaid; Mr. [Special Actions — 21.] 322 DOWER. Art. 6. Commissioners, their Powers, Duties and Report. Pine, of counsel for the plaintiff, and Mr. Carpenter, guardian ad litem for the infant defendant Robert G. Robertson, it is Ordered, That it be and that it hereby is referred to Thomas F. Donnelly, Esq., counsellor-at-law, as sole referee to ascertain the value of plaintiff's right of dower in the said several parcels respec- tively, and to report to this court the respective amounts so ascer- tained by him with all convenient speed. All questions in respect to costs and in respect to the relief to which the respective parties may be entitled are reserved until the coming in of the report of the said referee, and at which time any of the parties may make such motion in respect thereto as he or she may be advised. WM. J. M'KENNA, Clerk. ARTICLE VI. Commissioners, their Powers, Duties and Report. §§ 1608, 1609, 1610, 1611, 1612. § 1608. Oath of commissioners, etc.; removal ; filling vacancy. Each of the commissioners, or the referee, as the case requires, must, before entering upon the execution of his duties, subscribe and take an oath, before an officer specified in section 842 of this act, to the effect that he will faithfully, honestly and impartially discharge the trust reposed in him. The oath must be filed with the clerk, before a commissioner or a referee enters upon the execu- tion of his duties. The court may, at any time, remove the referee, or either of the commissioners. If either of them dies, resigns, or neglects or refuses to serve, or is removed, the court may, from time to time, appoint another person in his place. § 1609. Dower, how admeasured. The referee or the commissioners must execute their duties in the following manner: 1. They must, if it is practicable, and, in their opinion, for the best interests of all the parties concerned, admeasure and lay off, as speedily as possible, as the dower of the plaintiff, a distinct parcel, constituting the one-third part of the real property of which dower is to be admeasured, designating the part so laid off by posts, stones, or other permanent monuments. 2. In making the admeasurement, they must take into consideration any per- manent improvements, made upon the real property, after the death of the plaintiff's husband, or after the alienation thereof by him; and, if practicable, those improvements must be awarded within the part not laid off to the plaintiff; or if it is not practicable so to award them, a deduction must be made from the part laid off to the plaintiff, proportionate to the benefit which she will derive from so much of those improvements, as is included in the part laid off to her. 3. If it is not practicable, or if, in the opinion of the referee or commissioners it is not for the best interests of all the parties concerned, to admeasure and lay off to the plaintiff a distinct parcel of the property, as prescribed in the fore- going subdivisions of this section, they must report that fact to the court. 4. They may employ a surveyor, with the necessary assistants, to aid in the admeasurement. DOWER. 323 Art. 6. Commissioners, their Powers, Duties and Report. § 1610. Report thereupon. All the commissioners must meet together in the performance of any of their duties; but the acts of a majority so met are valid. The referee, or the com- missioners, or a majority of them, must make a full report of their proceedings, specifying therein the manner in which they have discharged their trust, with the items of their charges and a particular description of the portion admeasured and laid off to the plaintiff; or, if they report that it is not practicable, or, in their opinion, it is not for the best interests of all the parties concerned, to ad- measure and lay off a distinct parcel of the property of which dower is to be admeasured, they must state the reasons for that opinion and all the facts re- lating thereto. The report must be acknowledged or proved and certified, in like manner as a deed to be recorded, and must be filed in the office of the clerk. § 1611. Setting aside report. Upon the application of any party to the action, and upon good cause shown, the court may set aside the report, and, if necessary, may appoint new commis- sioners or a new referee, who must proceed, as prescribed in this title, with respect to those first appointed. § 1612. Fees and expenses. The fees and expenses of the commissioners or of the referee, including the expense of a survey, when it is made, must be taxed under the direction of the court; and the amount thereof must be paid by the plaintiff and allowed to her upon the taxation of her costs. Commissioners are entitled to five dollars per day, surveyors to same compensation, surveyors' assistants to two dollars per day. § 3299, Where a widow, having recovered her dower in ejectment, ap- plies to have her dower admeasured, notice to all the owners of the freehold is not essential ; notice to the attorney for the parties is sufficient. Stezvart v. Smith, i Keyes, 59. It is customary and usual for commissioners to give notice of their meetings to parties interested, but the want of a formal notice is not ground for refus- ing to confirm their report, where it appears that the party objecting knew of their meetings, and that no injustice was done him by the decision. Smith \. Smith, 6 'La.ns. 313. Where three com- missioners were appointed, the tenant not attending before the court at the time noticed, but on the same day one of them was changed by reason of his health ; held, that the proceedings might be regarded as continuous and regular without additional notice. White V. Story, 2 Hill, 543, Though dower must in general be assigned by metes and bounds, yet where the subject-matter is of such a nature that no decision can be made which will give the parties the enjoyment of their respective shares in severalty, it 324 DOWER. Art. 6. Commissioners, their Powers, Duties and Report. may be assigned so as to give the widow one-third of the profits or the parties may have an alternate occupation of the whole. White V.Story, 2 Hill, 543; Coatcsv. Cheever, i Cow. 460. No deduction can be made in consequence of any conveyance made by the husband to the wife during coverture. Hyde v. Hyde, 4 Wend. 630. Where dower was to be assigned in a build- ing used as a dwelling-house and store, the commissioners set it off by running lines through the premises, regardless of rooms, etc., so as to render a part of the building useless, Jield, that the report could be vacated on motion of the owners. Stewart v. Smith, i Keyes, 59. As to how dower is to be computed on a surplus paid into surrogate's court, arising on a foreclosure, see Taylor v. Bent- ley, 3 Redf. 34. A widow is entitled to the crops growing, at the time of her husband's death, on the lands assigned to her for dower. Clark v. Batter f, i T. & C. 58; see Kain v. Fisher, 6 N. Y. 597. Although a release by a wife of her inchoate right of dower is a good consideration for her husband's paying her a part of the purchase money, yet, as against his creditors, he being insolvent, she will only be entitled to retain the actual value of the inchoate right of dower, computed by ascertaining the value, for her life, in one-third of the proceeds of the premises, and deducting there- from the value of a like annuity for the joint lives of herself and her husband. Doty v. Baker, ii Hun, 222. To bar the widow's right to dower, where rent has been assigned with her assent and accepted by her, it must appear that the rent will endure for her Hfe. Ellicott v. Hosier, 7 N. Y. 201. If part of a home be assigned to a widow for dower, the tenant cannot object. White v. Story, 2 Hill, 543. Where the husband has conveyed part of the land, with warranty, the widow is bound to accept an assign- ment of her whole dower out of that of which he died seized. Wood V. Keyes, 6 Paige, 478. Where the husband's title has been divested by bankruptcy proceedings, the widow's dower is to be computed as of the time of the assignment in bankruptcy. Ray nor v. Raynor, 21 Hun, 36. A widow is entitled to have set off to her, by metes and bounds, the one-third part of lands of which her husband died seized as tenant in common, to be held by her as tenant in common with the other owner. Smith v. Smith, 6 Lans. 313. If one-third can- not be set off by metes and bounds, then one-third of the rents DOWER. 32 i Art. 6. Commissioners, their Powers, Duties and Report. and profits regulated, by the value at the time of the husband's alienation, should be set apart. Van G elder v. Post, 2 Edw. 577. A widow who elects to take a gross sum from the surplus, in lieu of dower, is entitled to the same clear of all costs or commissions. Campbell V. Erving, 43 How. 258. The widow is entitled to one- third of the land, according to its value at the time of alienation, and is not entitled to be allowed for any increase in value or any improvements. Brown v. Brozun, 4 Robt. 688 ; Bartlett v. Miis- liner, 28 Hun, 235 ; Marble v. Lewis, 36 How, 337, and cases cited. See Art. VH. See § 1600, and cases cited on this point. The question of improvements is to be determined by the commis- sioners. Marble v. Lewis, 53 Barb. 432. Dower is due of mines worked during coverture, not of those unopened at the husband's death. If the land assigned for dower contain an open mine, the doweress may work it. Coates v. Cheever, i Cow. 460. Upon the hearing before the referee, ap- pointed by an interlocutory judgment in an action brought for dower, it appeared that the real estate consisted of four distinct parcels. Held, that the plaintiff was not entitled to have her dower set off in each separate and distinct parcel, when to do so would unjustly affect the right of the parties. Express au- thority is conferred by § 1609, to set off a distinct parcel, consti- tuting one-third of the real property of which dower is to be admeasured. Price v. Price, 41 Hun, 486. Under the code one of several distinct parcels of land in which a widow is entitled to dower, constituting one-third of the real property of which dower is to be admeasured, may be set off in sat- isfaction of her entire claim for dower in the several parcels of property. Price v. Price, ii Civ. Pro. R. 359. A widow is entitled to have her dower assigned her, clear of all arrears of taxes and assessments which should be paid out of her husband's personal estate. Van Derbcckv. City of Rochester, 46 Hun, 87. It is not proper in the admeasurement of dower to impose charges upon lands not set off for the exclusive use and benefit of the doweress, during her life, nor is it proper to set off dower in a burial lot. Price v. Price, 54 Hun, 349; s. C. 27 St. Rep. no. The precedents which follow can be readily adapted to report of commissioners. 326 DOWER. Art. 6. Commissioners, their Powers, Duties and Report. Precedent for Report of Referee. SUPREME COURT — City and County of New York. MARY ANN ROBINSON, Plaintiff, agst. ROBERT COVERS, Individually, and as Sole Executor and Trustee under the Last Will and Testament of ANTHONY ROBINSON, Deceased, Defendants. ^ 138 N. Y. 425. To the Supreme Court of the State of Neiv York : I, the undersigned Thomas F. Donnelly, to whom, under an order of this court, bearing date the 27th day of November, 1891, made herein, it was referred as sole referee to ascertain the value of the plaintiff's right of dower in the several parcels of property men- tioned in said order, and therein described as Nos. 79 and 81 Perry street, respectively, and to report to this court the respective amounts so ascertained, with all convenient speed, do hereby report : 1. That before proceeding with the hearing of the matter so referred to me, 1 took oath prescribed by the Code of Civil Pro- cedure. 2. That I was attended on such reference by John B. Pine, Esq., attorney for plaintiff (recite other appearances), and thereupon heard the proofs of the respective parties, and from the evidence adduced on said reference and from the proofs before me, I do find and report as follows: That the plaintiff is 70 years old; that the value of the fee of No. 79 Perry street, New York city, mentioned in said order of refer- ence, is $15,000; that the value of the fee of No. 81 Perry street. New York city, mentioned in said order of reference, is $15,000; that the value of the plaintiff's right of dower in the premises known and mentioned as 79 Perry street in said order of reference, is $1,505.75; that the value of the plaintiff's right of dower in the premises known and mentioned as No. 81 Perry street in said order of reference, is $1,505.75. All of which, together with the testimony and proofs adduced before me, is respectfully submitted. The opinion of the undersigned is annexed to this report. Dated, New York, January 21st, 1892. THOMAS F. DONNELLY, Referee. DOWER. 327 Art. 6. Commissioners, their Powers, Duties and Report. Precedent for Referee's Report. SUPREME COURT. HANNAH EVERSON, Plaintiff, agst. ANDREW Mcmullen, defendant. - 113 N. Y. 293. To the Supreme Court of the State of Neiv York : I, Alvah S. Newcomb, the referee appointed by an order of this court made and entered on the 5th day of February, 1887, to ad- measure the dower of Hannah Everson, widow of Morgan Everson, deceased, in the property of which said Morgan Everson died seized, situated in the county of Ulster and described as follows: (Insert description) do respectfully report: I. Before entering upon my duties as such referee, I took and filed the oath prescribed by statute in such case made and provided to faithfully, honestly and impartially execute the trust reposed in me as such referee as aforesaid. II. On the i8th day of March, 1887, I attended at the premises hereinbefore described, and Hannah Everson, by her attorney, G. D. B. Hasbrouck, Esq., and Andrew McMullen, by his attorney, Charles M. Preston, Esq., appeared before me at the time and place afore- said and pointed out to me the boundaries of said property and the permanent improvements made thereupon after the death of said plaintiff's husband, and the sale of said property by the executor of her said husband. III. And I further report that in my opinion it is not for the best interests of all the parties concerned, to admeasure and lay off to said Hannah Everson a distinct part of said property, and the fol- lowing are the reasons for such opinion: ist. The property has a water front of 150 feet now divided into three unequal parts. The westerly part is a slip for the use of ves- sels, in the rear of which stands a large open shed or shop. The next or middle part is an open pier or dock extending from the channel bank of the Rondout Creek to the lane at the rear of this lot, and the easterly part is a ship railway for drawing vessels up and out of the water. All of which parts are used by and are indispen- sable to the said Andrew McMullen in his business as ship-builder. All of which improvements, except such shed or shop, have been made by the said Andrew McMullen. 2d. If an admeasurement should be made and one-third part of said property be set apart for said Hannah Everson, it could not be done without making the remaining part practically useless to the said Andrew McMullen for his business as ship-builder. 3d. If an admeasurement should be made and one-third part of said property be set apart for the said Hannah Everson, the rental value of the proportion set apart for her would not be equal to one- third of the rental value of the whole property; for her said one- 328 DOWER. Art. 7. What Damages may be Recovered in the Action. third part would be too small for ship-building purposes or for any other purpose for which such water fronts can be used. 4th. And I further report that under a stipulation of the respec- tive attorneys for the parties herein, I attended at the office of Preston & Chipp, attorneys for defendant herein, on the 23d day of March, 1887, and took testimony of certain witnesses to ascertain the rental value of said property, which said stipulation and testi- mony signed by the witnesses, is hereto annexed. 5th. And I further report that after hearing the testimony of the witnesses as aforesaid to ascertain the rental value of said property and after hearing G. D. B. Hasbrouck, Esq., of counsel for said Hannah Everson, and Charles M. Preston of counsel, for said Andrew McMullen, and after due consideration of all the evidence before me in this matter, I find that the rental value of said property (independent of the improvements made thereupon since the sale of said property by the executor of plaintiff's husband) was the sum of $300 for the year 1885, and that the rental value of said property since 1885, has been and still is the sum of $300 a year. 6th. The items of my charges are: For attending at said property to see if admeasurement could be made $10 For services as referee to ascertain rental value of said property or one day taking testimony 10 One day preparing report 10 $30 In witness whereof I have hereunto set my hand this first day of April, A. D. 1887. ALVAH S. NEWCOMB. ARTICLE VII. What Damages may be Recovered in the Action. §§ 1600, 1 60 1, 1602, 1603. § 1600. Damages may be recovered ; how estimated. Where a widow recovers, in an action therefor, dower in property, of which her husband died seized, she may also recover, in the same action, damages for withholding her dower, to the amount of one-third of the annual value of the mesne profits of the property, with interest; to be computed, where the action is against the heir, from her husband's death, or, where it is against any other person, from the time when she demanded her dower of the defendant; and in each case, to the time of the trial, or application for judgment, as the case may be; but not exceeding six years in the whole. The damages shall not include anything for the use of permanent improvements, made after the death of the husband. g 1601. Id. ; in action against alienee of husband. Where a widow recovers dower, in a case not specified in the last section, she may also recover, in the same action, damages for withholding her dower, to be DOWER. 329 Art. 7. What Damages may be Recovered in the Action. computed from the commencement of the action; but they shall not include anything for the use of permanent improvements, made since the property was aliened by her husband. In all other respects, the same must be computed as prescribed in the last section. § 1602. Id.; where several pjircels, etc. The last two sections do not authorize the recovery, against a defendant who is joined with others, of damages for withholding dower, in any portion of the property not occupied or claimed by him. § 1603. Id.; against heirs, etc.; aliening land. Where a widow recovers dower in real property aliened by the heir of her husband, she may recover, in a separate action against him, her damages for withholding her dower, from the time of the death of her husband to the time of the alienation, not exceeding six years in the whole. The sum recovered from him must be deducted from the sum which she would otherwise be en- titled to recover from the grantee; and any sum recovered as damages from the grantee, must be deducted from the sum which she would otherwise be entitled to recover from the heir. The widow is entitled to the value of the mesne profits arising on the use of the undivided third of the premises of which the husband died seized, from the death of her husband, exclusive of the improvements since made thereon. Hazett v. T/mrber, 4 Johns, Ch. 604. The widow is entitled to damages from the death of her husband, provided he died seized ; she can recover them only against the tenant, and he is liable for them for the whole time. Hitchcock v. Harrington, 6 Johns. 290. Such dam- ages were not recoverable at common law. Enbrcc v. Ellis, 2 Johns. 119. Where the husband aliens in his lifetime, a judg- ment that the widow recover one-third of the land is erroneous; commissioners must be appointed to pass upon the question of improvements. Marble v. Lewis, 36 How. 337. The value at the time of the alienation by the husband may be ascertained by a jury on the trial of an issue. Dolfv. Bassett, 15 Johns. 21. A sale by the heir will not prevent the widow from recovering dam- ages from the death of the ancestor, nor will a delay in bringing the action prejudice her claim. Hitchcock v. Harr ington, 6 ]o\\ns. 290. That the widow may recover damages. Van Name v. Van Name, 23 How. 247. The widow's dower is to be taken accord- ing to the value of the land at the time of the alienation. Hum- phrey V. PJiinney, 2 Johns. 483. If the husband mortgages the land, but continues in possession, and afterwards releases the equity of redemption to the mort- 330 DOWER. Art. 7. What Damages may be Recovered in the Action. gagee, the date of the release is deemed the period of ahenation at which the value is to be estimated. Hale v. Jaines, 6 Johns. Ch. 258. The widow is not entitled to recover against the pur- chaser arrears which occurred previous to his purchase; they are to be ascertained where there is an outstanding mortgage by- computing the amount due on the mortgage at the time of the purchase, and deducting one-third of the interest on that amount from one-third of the rents and profits of the property, over and above the necessary repairs, taxes, etc. Russell v. Austin, i Paige, 192; Hale v. James, 6 Johns. Ch. 258. The meaning of the statute is, that the widow shall not recover for increased value of the land. Dorchester v. Coventry, 11 Johns. 510; Shaw v. White, 13 Johns. 179; Coates v. Cheever, i Cow. 460 ; Walker v. Schuyler, 10 Wend. 481. It is by statute alone that a widow may recover for arrears of dower, either at law or in equity, and damages for withholding can only be estimated for six years prior to the judgment. Kyle v. Kyle, 67 N. Y. 400. The rule in Kyle V. Kyle, that a widow can only recover rents and profits as incident to dower, held, not to prevent a widow, who had assented to a conveyance by mistake, from having an accounting as to proceeds of sales. It is error to allow a widow to have an account- ing against a grantee for rents and profits, received prior to the husband's death, and prior to her demanding dower from such grantee. WittJiatis v. ScJiack, 38 Hun, 590. See S. C. reversed on another point, 105 N. Y. 332. The rule that dower is to be computed upon the value of the property as it was at the date of the succession by the heir, is applied in Sidzvay v. Sidway, 23 St. Rep. 305, 4 N. Y. Supp. 920, 52 Hun, 222. Under the provisions of the Code, §§ 1600 and 1603, a grantee of property subject to the dower interest, becomes liable only after a demand, after which his liability continues in existence six years in all, until judgment admeasuring the dower is entered although prior to that time he may have conveyed the land, while an heir-at-law is liable from the date of the death of the husband. Price V. Price, 54 Hun, 349. See cases under Art. VI. DOWER. 331 Art. 8. Agreement to Accept Gross Sum and Proceedings Thereon. ARTICLE VIII. Agreement to Accept Gross Sum and Proceedings Thereon. §§ 161 7 to 1624. Rule 70. § 1617. Plaintiff may consent to receive a gross sum. In an action for dower, the plaintiff may, at any time before an interlocutory judgment is rendered, by reason of the defendant's default in appearing or pleading, or, where an issue of fact is joined, at any time before the commence- ment of the trial, file with the clerk, a consent to accept a gross sum, in full satisfaction and discharge of her right of dower in the real property described in the complaint. Such a consent must be in writing, and acknowledged or proved, and certified, in like manner as a deed to be recorded. A copy thereof, with notice of the filing, must be served upon each adverse party who has ap- peared, or who appears after the filing. § 1618. Defendant may consent to pay it ; proceedings thereupon. At any time after a consent is filed, as prescribed in the last section, and before an interlocutory judgment is rendered, any defendant may apply to the court, upon notice, for an order granting him leave to pay such a gross sum. Thereupon the court may, in its discretion, and upon such terms as justice re- quires, ascertain the value of the plaintiff's right of dower in the property, by a reference or otherwise, and make an order, directing payment, by the applicant, of the sum so ascertained, within a time fixed by the order, not exceeding sixty days after service of a copy thereof; and directing the execution by theplaintiff of a release of her right of dower, upon receipt of the money. Obedience to the order may be enforced, either by punishment for contempt, or by striking out the pleading of the offending party, and rendering judgment against him or her or in both modes. § 1619. Interlocutory judgment for sale. Where the plaintiff's consent has been filed, as prescribed in the last section but one, and she is entitled to an interlocutory judgment in the action, the court must, upon the application of either party, ascertain, by reference or otherwise, whether a distinct parcel of the property can be admeasured and laid off to the plaintiff, as tenant in dower, without material injury to the interests of the parties. If it appears to the court, that a distinct parcel cannot be so admeas- ured and laid off, the interlocutory judgment must, except in the case specified in the next section, direct that the property be sold by the sheriff, or by a referee designated therein; and that, upon the confirmation of the sale, each party to the action, and every person deriving title from, through, or under a party, after the filing of the judgment-roll, or of a notice of the pendency of the action, as prescribed in article ninth of this title, be barred of and from any right, title, or interest in or to the property sold. t^ 1620. Id.; directing a part to be laid oflf. In a case specified in section 1617 of this act, where the property, or a part thereof, consists of one or more vacant or unimproved lots, the plaintiff's con- sent may contain a stipulation to take a distinct parcel, out of those lots, in lieu of a gross sum. In that case, the interlocutory judgment, instead of directing 332 DOWER. Art. 8. Agreement to Accept Gross Sum and Proceedings Thereon. a sale, may direct, if it appears to be just so to do, that commissioners be ap- pointed to admeasure and lay ofif to the plaintiff a distinct parcel, out of the vacant or unimproved lots; and, if there is any other property, that it be sold, and a gross sum be paid to her out of the proceeds thereof, as prescribed in the next three sections. The plaintiff's title to each distinct parcel, admeasured and laid off to her, as prescribed in this section, is that of an estate of inheritance in fee simple. In admeasuring and laying off the same, the commissioners must consider quantity and quality relatively, according to the value of the plaintiff's right of dower in the vacant or unimproved lots, out of which the admeasure- ment is to be made; which must be ascertained, in proportion to the value of those lots, as prescribed, in the next three sections, for fixing a gross sum to be paid to her out of the proceeds of a sale. § 1621. liiens to be ascertained. Before an interlocutory judgment is rendered for the sale of the property, the court must direct a reference to ascertain whether any person, not a party, has a lien upon the property, or any part thereof. Except as otherwise expressly prescribed in this article, the proceedings upon and subsequent to the reference must be the same, as prescribed in article second of this title, where a reference is made as prescribed in section 1561 of this act. See Dcnnerlcin v. Dennerlcin, 12 St. Rep. 640 as to effect of omitting notice. § 1622. Id.; payment of; or sale subject to. Where the interlocutory judgment directs a sale, if the right of dower of the plaintiff is inferior to any other lien upon the property, the judgment may, in the discretion of the court, direct that the property be sold either subject to the lien, or discharged from the lien; and, in the latter case, that the officer making the sale pay the amount of the lien, out of the proceeds of the sale. § 1623. Repcrt of sale. Immediately after completing the sale, and executing the proper conveyance to the purchaser, the officer making the sale must make and file with the clerk a report thereof, showing the name of the purchaser, and the purchase-price paid by him, or, if the property was sold in parcels, the name of each purchaser, and the price and a description of the parcel sold to him; the sums which the officer has paid out of the proceeds of the sale, pursuant to the interlocutory judgment; the purpose for which each payment was made; the amount and items of his fees and expenses; and the net amount of the proceeds, after deducting the payments. § 1624. Pinal judgment thereon. Upon confirming the sale, the court must ascertain, by a reference or other- wise, the rights and interests of each of the parties in and to the proceeds of the sale, and also what gross sum of money is equal to the value of the plaintiff's dower in the net proceeds of the sale, calculated upon the principles applicable to life annuities. The court must thereupon render final judgment, confirming the sale, and directing that the gross sum so ascertained be paid to the plaintiff, in full satisfaction of her right of dower; and that the remainder of the proceeds of the sale be distributed among the persons entitled thereto. DOWER. 333 Art. 8. Agreement to Accept Gross Sum and Proceedings Thereon. Rule 70. Gross sum in payment of life estate ; how ascertained. Whenever a party, as a tenant for life, or by the curtesy, or in dower, is en- titled to the annual interest or income of any sum paid into court and invested in permanent securities, such party shall be charged with the expense of invest- ing such sum, and of receiving and paying over the interest or income thereof; but if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the same shall be estimated according to the then value of an annuity of five per cent on the principal sum, during the prob- able life of such person, according to the Portsmouth or Northampton tables. When a party elect.s to accept a gross sum in lieu of dower or an annual income for life, upon a fund in court, it is customary, on petition of the party entitled to the same, to appoint a referee to compute the amount due, but this is for the convenience of and discretionary with the court, and when the court refuses to appoint a referee, it is presumed it deemed it a proper case to take the proofs itself and that the matter is still before the court for that purpose. Livingston v. Livingston, 8 Week. Dig. 328. See Rule 70, supra, and Northampton tables under § 1569. A widow may dispose of her dower right before it is admeas- ured, and where land is subject to a dower right of the widow, the purchaser may elect to take title subject to the dower right, in which case he is entitled to an abatement from the contract price equal to the gross cash value of the dower right, and where the widow was a party to the sale without any reservation of her dower right, she was held to have consented to look to the pur- chase money as a substitute for the land and her dower right therein. Bostwick v. Beach, 103 N, Y. 414. Precedent for Release of Dower. SUPREME COURT — County of New York. MARY ANN ROBINSON agst. ROBERT GOVERS Individually and as \ 138 N. Y. 425. Executor of ANTHONY ROBINSON, Deceased, and Others. The undersigned, Mary Ann Robinson, the plaintiff in the above- entitled action, hereby consents to accept a gross sum in full satis- faction of her right of dower in the real property described in the amended complaint herein as parcel "A," the amount to be ascer- tained pursuant to law. Dated, New York, i6th day of April, 1891. MARY ANN ROBINSON. 334 DOWER. Art. 9. Final Judgment and its Effect. ARTICLE IX. Final Judgment and its Effect. §§ 161 3, 1614, 1615. § 1613. Final judgment. Upon the report being confirmed by the court, final judgment must be ren- dered. If the referee or commissioners have admeasured and laid off to the plaintiff a distinct parcel of the property, the judgment must award to her, during her natural life, the possession of that parcel, describing it, subject to the payment of all taxes, assessments, and other charges, accruing thereupon after she takes possession. If the referee or the commissioners report, that it is not practicable, or that, in his or their opinion, it is not for the best interests of all the parties concerned, so to admeasure and lay off a distinct parcel of the property, the final judgment must direct, that a sum, fixed by the court, and specified therein, equal to one-third of the rental value of the real property, as ascertained by a reference or otherwise, be paid to the plaintiff, annually or oftener, as directed in the judgment, during her natural life, for her dower in the property; and that the sum so to be paid, be and remain a charge upon the property, during her natural life. The final judgment may also award damages for the withholding of dower. § 1614. Plaintiff may recover sum awarded; court may modify judgment. The plaintiff may, from time to time, maintain an action against the owner, or a person who was the owner of the property, to recover any instalment of the sum, so awarded to her for her dower, which became due during his owner- ship, and remains unpaid. Or, if an instalment remains due and unpaid, she may maintain an action to procure a sale of the property, and enforce the pay- ment of the instalments, due and to become due, out of the proceeds of the sale. Such an action must be conducted, as if the charge upon the real property was a mortgage to the same effect. If, at any time, it is made to appear to the court, that the rental value of the real property has materially increased or diminished, the court may, by an order, to be made upon notice to all the persons interested, modify the final judgment by increasing or diminishing the sum to be paid to the plaintiff. § 1615. Junior incumbrancers; not a£Fected by admeasurement. Where a portion of the property is admeasured and laid off to plaintiff as her dower, a lien, which is inferior to the plaintiff's right of dower, attaches, during the life of the plaintiff, to the residue, or to the portion or share of the residue which was subject to it, as if the portion laid off to the plaintiff had not been a part of the property. Where a decree was entered, adjudging plaintiff to be entitled to dower, and fixing the sum to which she was entitled as one- third of the yearly income of the property and after two pay- ments, a motion was made for an order that the doweress receive one-third of the net rents, held that as the court had, as required by § 1613, fixed a sum equal to one-third of the rental value of DOWER. 335 Art. 9. Final Judgment and its Effect. the property, and specified the same as the dower, the court had no power to alter such final judgment. Mclntyre v, Clarke 43 Hun, 352. Judgment to be entered in this action is that provided by § 161 3, which authorizes judgment awarding the widow during her natural life, actual possession of a certain portion of the property, or that she be paid a certain sum annually during her life and that damages may be awarded her for withholding dower. Where she does not take any proceedings in her lifetime to assert her claim, the right to have dower admeasured abates with her death and neither her personal representatives nor those of her assignee can thereafter enforce it in any form. Howell v. Newman, 59 Hun, 538, 37 St. Rep. 296. Precedent for Final Judgment. At a Special Term of the Supreme Court of the State of New York, held at the county court house, in the city of Kingston, on the 9th day of April, A. D. 1887. Present — Hon. Alton B. Parker, Justice. HANNAH EVERSON, Plaintiff, agst. ANDREW McMULLEN, Defendant. -113 N. Y. 263. The above-entitled action having been heretofore duly brought to trial at a Circuit Court, held in and for the county of Ulster at the court house in the city of Kingston, commencing November, 16, 1885, and trial by jury having been waived in open court and trial having been had and the decision of the court made and filed and an interlocutory judgment having been appealed from and having been modified by order of the General Term of this court entered on the second day of February, 1887, in the office of the clerk of the county of Ulster, and the court having made an order pursuant to said interlocutory judgment, so modified as aforesaid, and entered in said clerk's office on the 7th day of February, 1887, appointing a referee to admeasure plaintiff's dower in the premises described in the complaint, and who, pursuant to stipulation, took testimony to ascertain the rental value of said premises, and the report of said referee having been duly filed in the office of the clerk of the county of Ulster of the 5th day of April, 1887, and Messrs. Preston & Chipp^ of counsel for defendant, being now here in open court and waiving notice of confirmation of said report and application for this judgment, it is adjudged and decreed that the said report of 336 DOWER. Art. 9. Final Judgment and its Effect. Alvah S. Newcomb be and the same is hereby in all respects con- firmed save section five thereof in which the referee finds the rental value of said property; And now after hearing G. D. B. Hasbrouck, Esq., plaintiff's attorney, in favor of this final judgment, and Mr. Chipp, of counsel for the defendant, opposed, and after reading the papers aforesaid now on file, it is adjudged and decreed that the plaintiff is entitled to dower in the premises described in the complaint as follows: (Insert description.) And after reading and filing the evidence taken by said referee and his oath and the stipulation of counsel to said evidence, annexed, in relation to the rental value of said premises described in the com- plaint, and after hearing G. D. B. Hasbrouck, plaintiff's attorney, and Preston & Chipp, Esqs., of counsel for defendant, concerning the same, I hereby fix and determine the rental value of said premises for the year 1885 and since and now, at and to be the sum of $225 per year independent of taxes or other charges, they hav- ing been taken into consideration in fixing the same; And it is hereby adjudged and decreed that the defendant pay the plaintiff the sum of $75 per year on the first day of January of each year during her life, as and for her dower in the premises, or her attorney for her; And on reading the pleadings herein and the evidence taken by the referee as aforesaid, and proof of the taxes and other charges against the said property being now here adduced before me, and the plaintiff and defendant, by their respective attorneys, being now here in open court, I hereby fix and determine one-third of the annual value of the mesne profits to be $75 per year; And it is hereby adjudged and decreed that the plaintiff Hannah Everson do recover of the defendant Andrew McMuUen the sum of $135 -75 damages for the withholding plaintiff's dower from the nth day of June, 1885, to date hereof; And it is hereby adjudged and decreed that plaintiff recover $137, her costs awarded her by said General Term order, to be taxed by the clerk, and the disbursements of this action, and the costs as of course and not awarded by the discretion of the court in the sum of $147.33 to be hereafter taxed by the clerk. A. B. PARKER, J. S. C. CHAPTER IV. FORECLOSURE.* PAGE. Article I. Nature of the action and courts having jurisdiction. 337 2. Parties plaintiff and defendant. Sec. 1627 342 3. Complaint and notice of pendency of action. Sees. 1629,1631 356 4. Answer and defences 000 359 5. Matters of practice. Sees. 1628, 1630 373 6. Reference to compute amount due. Rule 60, 79 . . 403 7. Judgment, the character and extent of relief. Sees. 1626, 1632. Rule 61 411 8. Sale and manner in which it is conducted. Rule 63. 430 9. Judgment for deficiency 43° 10. Proceedings when mortgage debt is not all due. Sees. 1634, 1635,1636, 1637 441 11. Surplus proceedings. Sec. 1633. Rule 64 445 12. Precedents for foreclosure of mortgage given to secure bonds 407 Sections of the Code of Procedure and Where Found in sKc. THIS Chapter: art. page. 1626. Final judgment; what to contain 7 4" 1627. Person liable for mortgage debt may be made defendant, etc.. . 2 345 1628. Other actions for mortgage debt, when prohibited 5 39° 1629. Complaint to state whether such action brought 3 35^ 1630. If judgment rendered therein, execution must be returned 5 370 1631. Notice of pendency of action to be filed 3 359 1632. Effect of conveyance upon sale 7 42 1 1633. Disposition of surplus n 445 1634. When complaint to be dismissed on payment of sum due ...... 10 441 1635. Payment after judgment; when proceedings to be stayed 10 441 1636. When part only of the property to be sold 10 44i 1637. When the whole property may be sold 10 44i ARTICLE L Nature of the Action and Courts Having Jurisdiction. SiTB. I. Character of the Action. 2. Strict foreclosure. 3. Courts having jurisdiction and place of trial. * The subject of foreclosure is very exhaustively treated in Wiltsie on Law and Practice of Foreclosure, also in Hilliard, Jones, Pingrey and Thomas on Mortgages. [Special Actions — 22.] [337] 338 FORECLOSURE. Art. I. Nature of the Action and Courts Having Jurisdiction. Sub. I. Character of the Action. The object of the action of foreclosure is to enable the mort- gagee to have the mortgaged premises sold in order to obtain his money, interest and expenses, and that the mortgagor and all persons claiming under him be barred of all equity of redemption in the mortgaged premises, the purchaser taking a clear title to the land sold. Gerard's Titles to Real Estate, 4th ed. 671. Hilliard on Mortgages defines foreclosure to be the process by which a mortgagee acquires or transfers to a purchaser an absolute title to the property on which he had previously had a mere lien by way of mortgage. Two objects are sought to be accomplished in foreclosures under the practice in this State, on the sale of the mortgaged property by decree, one to give perfect title and apply the moneys arising from the sale upon the mortgage debt, the other in case of de- ficiency to obtain a personal judgment against the parties liable therefor. Wiltsie on Mortgage Foreclosure, 5. It is said in Selkirk v. Wood, 9 Civ. Pro. R. 141, that an action of foreclosure is a proceeding in rem, while the contrary is held in Osborne v. Randall, 7 Civ. Pro. R. 323. There are three methods of foreclosure which are or have been recognized in this State : First. Strict foreclosure or foreclosure without sale of the prop- erty, the purpose of which is to perfect in the mortgagee an abso- lute title instead of by resort to a sale. This procedure was origi- nated in England, upon the theory that the mortgagee acquired title to property subject only to an equity of redemption, and the action was used simply to perfect that title in the mortgagee and deprive the owner of the equity of any right in the property. Whether or not that method now exists in this State will be considered further. The effect of a strict foreclosure is to cut off and extinguish the equity in the mortgagor and leaves the title conveyed by the mort- gagor absolute in the mortgagee. Packer v. Rochester^ etc. R. R. Co. 17 N. Y. 283. Second. Statutory foreclosure or foreclosure by advertisement, a remedy under which sale may be had by proceedings provided for by statute. This method is provided for under §§ 2387 to 2409 of the Code, and is treated in Fiero on Special Proceedings. FORECLOSURE. 339 Art. I. Nature of the Action and Courts Having Jurisdiction. As the statutory proceedings must be strictly followed and the courts have insisted that the papers must show every matter con- nected with jurisdiction, it is not ordinarily used except in cases where the value of the property is comparatively small. Third. The action in equity recognized and to a very small extent regulated under the provisions of the Code, §§ 1626 to 1637. The procedure is regulated by the rules applicable to courts of equity and was well defined by the chancery practice previous to the adoption of the Code, and those rules as enacted in the rules of the Supreme Court, continue to govern the method of carrying on the action. The very general character of the Code regulations doubtless arises from the fact that the foreclosure of mortgages proceeded under the equity practice and was not a matter of statute except to a very limited extent. The codifiers seem to have been dis- posed to leave the practice unchanged, and made no attempt to interfere with it or further formulate it. The result is shown by the first section, which contains the provision for final judgment, while the next provides as to the proper parties to the action. Both the rules and the provisions of the Code will be cited and the practice given as established. There formerly existed the method of foreclosure by entry and possession which is still common in New England States, but is not known in this State and will, therefore, not be considered. Wiltsie on Mortgage Foreclosure, § 3. Sub. 2. Strict Foreclosure. The language of § 1626 would seem to direct a sale of property absolutely and at all events, and thus entirely abolish the method of foreclosure known as " strict foreclosure." The language of the Revised Statutes with reference to the power of the court was " shall have power to decree," while that of § 1626 it will be noted is " final judgment inust direct the sale of the property mortgaged," but such foreclosure has been had since the Code apparently without the objection being raised; the lands in that case were, however, without the State. House v. Lockzvood, i St. Rep. 196; S. C. 40 Hun, 532; see, also, Franklyn v. Haynvard, 61 How. 43. Strict foreclosure was allowable where foreclosure had once been had and the property sold, and some person not having been 340 FORECLOSURE. Act. I. Nature of the Action and Courts Having Jurisdiction. made a party had a right to redeem it for the purpose of confirm- ing a title otherwise defective. Bolles v. Duff, 43 N. Y. 469; Kendall V. Treadwell, 14 How. 165; Benedict v. Gilman, 4 Paige, 58; Ross V. Boardman, 22 Hun, 527; Mills v. Dennis, 3 Johns. Ch. 367. In Moulton v. Cornish, 138 N. Y. 133, it is said that the equit- able remedy known as a strict foreclosure of a real property mort- gage has never been recognized in this State save in a very limited class of cases. It had its root in the common law doctrine that the mortgagee acquired a fee in the land, and upon a default of payment a right to the possession, and that the mortgagor had no estate or interest therein and no right of possession after a default had been made in the payment of the mortgage debt. The mortgagee's remedy was by ejectment, and in a court of law it was not an available defence for the mortgagor to plead that he was willing and ready to pay the debt if he had once suffered a default to occur. In order to mitigate the hardships of this rule, equity permitted a mortgagor and his privies to redeem by dis- charging the mortgaged debt and by restoring to him the posses- .sion of the land if the mortgagee had taken possession. Equity would entertain an action to compel the parties entitled to this right to exercise it by paying within a reasonable time the amount of the mortgaged debt or be forever barred or foreclosed of the right of redemption and in case of redemption the decree pro- vided that the mortgagee should reconvey the lands to the mort- gagor or other party redeeming. It is further said in the opinion of Maynard, J., all concurring: " This proceeding has been termed a strict foreclosure, but it is apparent that it has no appropriate place in the system of laws and jurisprudence where it has been declared that the mortgage does not operate as a conveyance of the legal title, but is only a chose in action constituting a Hen upon the land as security for the debt or other obligation of the mortgagor, and the courts of this State have refused to adopt it as an authorized remedy in ordinary cases, and in this respect have followed the practice of the civil rather than of the common law.' Strict foreclosure is very rarely resorted to in American courts and in a large majority of the States it is not recognized. It was held in that action that no case was made for a resort to this unusual, exceptional and severe remedy; but it is said that it is unnecessary to determine FORECLOSURE. 341 Art. I. Nature of the Action and Courts Having Jurisdiction. whether under the provisions of the Code such a judgment can be rendered in any case, the court assuming that in a proper case jurisdiction exists to reheve a purchaser at a foreclosure sale, who finds that, by reason of some defect in the proceedings, the lien of a subsequent incumbrance has not been extinguished. Strict foreclosure should be resorted to only in extreme cases ; and it seems that it is not called for in favor of a prior mortgagee, in possession through an action foreclosing a prior mortgage, de- fendant in a subsequent action brought to foreclose a junior mortgage by a mortgagee who was not made a party to the prior action, instead of permitting the junior mortgagee to sell at his own expense, where the defendant prior mortgagee's possession is under liens in excess of the value of the mortgaged premises, and the junior mortgagee cannot sell except in subordination to all his rights. Denton v. Ontario Co. N. Bank, 150 N. Y. 126, re- versing ']'] Hun, 83. The remedy has not been allowed by the Court of Appeals since the adoption of the Code in 1880, and may, therefore, be deemed practically obsolete. Sub. 3. Courts Having Jurisdiction and Place of Trial. The Supreme Court has jurisdiction of mortgage foreclosures as the successor to the Court of Chancery. Code, § 217. The power conferred upon county courts by § 340 does not include as incidental thereto the power to reform a mortgage. A county court, therefore, has not jurisdiction of such an action although part of the relief asked is the foreclosure of the mort- gage after it has been reformed ; the remedies are independent and may be attained by separate actions open to separate and independent defences. Thomas v. Harmon, 122 N. Y. 84; citing Avery v. Willis, 24 Hun, 548. See, to same effect, Thomas v. Harmon, 46 Hun, 75. But it is held that in an action to fore- close a mortgage, the county court has jurisdiction to reform the conditions of the bond in relation to the time for which interest is to be computed ; such relief is strictly incidental, secondary and ancillary to the foreclosure proceedings. Mead v. Langford, 30 St. Rep. 450. In an action to foreclose a mortgage, where part of the lands covered by it are in another State, the court has jurisdiction to decree a sale of the whole and may require the mortgagor to exe- cute a conveyance to the purchaser. The Union Trust Co. v. 342 FORECLOSURE. Art. 2. Parties Plaintiff and Defendant. Olmsted, 102 N. Y. 729; cited Harrison v. Union Trust Co. 144 N. Y. 326. By virtue of § 982, an action to foreclose a mortgage must be tried in the county where the property, or some part thereof, is situated. Binghamton Iron Foundry v. Hatfield, 43 N. Y. 224; Gould V. Bennett, 59 N. Y. 124. This is the rule, although the money may have been loaned and mortgage executed in another county. Miller v. Hull, 3 How. 325. If no objection is made that the place of trial is not the proper county, it will not affect the regularity of the proceedings. Marsh v. Lowry, 26 Barb. 197. ARTICLE 11. Parties Plaintiff and Defendant. § 1627. Sub. I. Parties plaintiff. 2. Necessary and proper parties defendant. § 1627. 3. Prior lienors not proper parties. Sub. i. Parties Plaintiff. There is no provision by statute as to parties plaintiff peculiar to this action. The assignee of a mortgage may foreclose. Whitney v. Mc- Kinney, 7 Johns. Ch. 144; Andrews v. Gillespie, de^ N. Y. 487. It is said in Sivart v. Bennett, 4 Abb. Ct. of App. Dec. 353, that a bona fide assignee for value of a mortgage originally given as con- sideration for a fraudulent transfer of lands may foreclose, though the transfer has been adjudged void as against creditors. But if the assignment is as collateral security, both assignor and assignee should join as plaintiffs. Norton v. Warner, 3 Edw. Ch. 105 ; Hoyt V. Martense, 16 N. Y. 231. The owner, where he has pledged the mortgage as collateral for a debt less than the face of the mortgage, has an interest in it which erLtitles him to bring an action to foreclose. In such action the ip Tod t g iM- is a necessary party, but it is immaterial, so far as the mortgagor is concerned, whether he is a party plaintiff or defendant. Simpson v. Satter- lee, 64 N. Y. 657. Where plaintiff assigned a mortgage as secu- rity, and in an action by the pledgee it was adjudged a certain amount was due him, which was paid by the owner, it was held the action by the pledgee was not a bar to a foreclosure by the owner. C Dougherty v. Remington Paper Co. 81 N. Y. 496. FORECLOSURE. 343 Art. 2. Parties Plaintiff and Defendant. The holder of the mortgage to whom it has been assigned as collateral may maintain the action to foreclose, but he can only recover the amount due him, and the owner of the interest, sub- ject to the assignment, must be made a party, either plaintiff or defendant. Whitney v. McKiniicy, 7 Johns. 144; Carpenter v. O' Dougherty, 6y Barb. 397; Bloomer v. Stiirges, 58 N. Y. 168 Bard v. Poole, 12 N. Y. 495; Bush v. Lothrop, 22 N. Y. 535 Salmon ^r. Allen, 11 Hun, 29; Dalton v. Smithy 86 N. Y, 176 Union College v. Wheeler, 61 N. Y. 88; Slee v. Manhattan Co. i Paige, 48 ; Western Res. Bank v. Potter, Clarke's Ch. 432. The power to foreclose may be exercised by one owning only a part of the mortgage debt, and if he claim too much, that does not render the sale void. Batterman v. Albright, 6 St. Rep. 334. If the party bringing the foreclosure has not the entire interest, the interested parties should be plaintiffs with him unless they refuse, which should be alleged, and then they should be made defendants. Lawrence v. Lawrence, 3 Barb. Ch. 71 ; LLancock v. Hancock, 22 N. Y. 568. The joint holders of a mortgage should be co-plaintiffs unless upon refusal of one to join, as in the case of assignor and assignee. Code of Civ. Pro. § 448 ; Paton v. Murray., 6 Paige, 474; see Lawrence v. Lawrence, 3 Barb. Ch. 71 ; McGregor v. McGregor, 35 N. Y. 218; Carpenter v. O' Dougherty, 2 T. & C. 427, affirmed, 58 N. Y. 681. An assignment of the mortgage without the bond, whether in writing or by parol, and as collateral or otherwise, is a nullity, and the assignee acquires no interest especially as against a subsequent assignee of both the bond and mortgage — Merrill v. Bartholick, 36 N. Y. 44 — although the bond and mortgage may be assigned by delivery if that is the intention. Strause v. Josephthal, yy N. Y. 622. Parties who are entitled to the benefit of the mortgage security, although not named as mortgagees or holding an assignment, may foreclose as equitable assignees in some cases. Lawrence v. Law- rence, 3 Barb. Ch. 71 ; Ferguson v. Ferguson, 2 N. Y. 360; Han- cock v. Hancock, 22 N. Y. 568 ; Stewart v. Hutchinson, 29 How. 181 ; Bolles V, Duff, 43 N. Y. 469; Robinson v. Ryan, 25 N. Y. 320. A surety who has been obliged to pay a mortgage debt may be subrogated to the rights of the mortgagee and maintain foreclosure. Halscy v. Reed, 9 Paige, 446; McLean v. Towle. 3 Sandf. Ch. 117; Marsh v. Pike, 10 Paige, 595 ; Brewer v. Staples, 3 Sandf. Ch. 579; Tice v. Annan, 2 Johns. Ch. 125; Johnson v. 344 FORECLOSURE. Art. 2. Parties Plaintiff and Defendant. Zink, 52 Barb. 396; Cox v. Wheeler, 7 Paige, 248; Cherry v. Motiro, 2 Barb. Ch. 627; Ferris v, Crawford, 2 Den. 595; Pat- terson V. Birdsell, 64 N. Y. 294; Strause v. Josephthal, yy N. Y. 622; Averill v. Taylor, 8 N. Y. 44; Calvo v. Davies, 73 N. Y. 211; MarsJiall v. Davies, 78 N. Y. 414; Ellsworth v. Lockwood, 42 N. Y. 89; Dings v. ParsJiall^ 7 Hun, 522. Two mortgagees holding contemporaneous mortgages, being liens of the same date, may unite in a foreclosure. Potter v. Crandall, Clarke's Ch. 119. See Decker v. Boice, 83 N. Y. 215 ; Granger v. Crouch, 86 N. Y. 494, and Green v. Warnick, 64 N. Y. 220. Where a mort- gage is given to the special guardian of an infant, the guardian is the proper person to file a bill for redemption and assignment of a second mortgage on the same premises. Pardee v. Va7i Aiken, 3 Barb. 534. It is held, in Roosevelt \. Ellithorp, 10 Paige, 415, that the same person cannot, at the same time, foreclose two mortgages on the same property by separate actions. As to the right of fore- closure where the mortgage was given to an executor or adminis- trator as such, being vested in his successor, and when such mort- gage, given to an executor in his own name, should be foreclosed by the personal representative of such executor, see Peck v. Mal- lams, 10 N. Y. 509; People v. Keyser, 28 N. Y. 226; Renaud v. Conselyea, 5 Abb. 346; Caulkins v. Bolton, 98 N. Y, 511 ; Bunn v. Vaughan, i Abb. Ct. App. Dec. 253. Where a mortgage, given by an executor to his testator during his lifetime, is the only asset of the estate, and the executor refuses to bring an action, a judg- ment creditor of deceased may maintain an action to compel the sale of the mortgaged premises and the payment of his debt from the proceeds of the sale. Raynor v. Gordon, 16 Hun, 126. One executor or trustee may foreclose against another. Paton V. Murray, 6 Paige, 474; Lawrence v. Lawrence, 3 Barb. Ch. 71 ; McGregor v. McGregor, 35 N. Y. 218. Contra, Vrooman v. Strim- son, 7 Week. Dig. 408. A foreign executor or administrator can- not foreclose without taking out letters in this State. Morrell v. Dickey, i Johns. Ch. 153; Williams v. Storrs, 6 Johns. Ch. 353; Doolittle V. Lezvis, 7 Johns. 45 ; Vroom v. Van Home, 10 Paige, 549; Broivn v. Brown, i Barb. Ch. 353; Smith v. Webb, i Barb. 232 ; Vermilya v. Beatty, 6 Barb. 429 ; Lawrence v. Elmendorf, 5 Barb. 73; Par sons v. Lyman, 20 N. Y. 173; Peterson v. Chemical Bank, 32 N. Y. 21. The objection must be taken by answer or FORECLOSURE. 345 Art. 2. Parties Plaintiff and Defendant. demurrer, or it will be waived. Doolittlc v. Lewis, 7 Johns. Ch. 45; RobbinsM. Wells, 26 How. 15; Zabriskie v. Smith, 13 N. Y. 322; McBride v. Farmers Bank. 26 N. Y. 457. But assignment of mortgage, by a foreign administrator, vests the title in the as- signee, who may foreclose. Smith V. Tiffany, 16 Hun, 552. The letters of administration granted in this State are conclusive as to the validity of the appointment. Abbott v. Curran, 98 N. Y. 665. A receiver, or the successor of a receiver, may foreclose a mortgage given him in his official capacity. Leavitt v. Pell, 27 Barb. 322, affirmed, 25 N. Y. 474; Attorney-General v. Guardian Mutual Life Ins. Co. yy N. Y. 272. A mortgage held by an administrator and assigned to him through a third party, can be foreclosed by him though void- able as to next of kin of the testator. Read v. Knell, 143 N. Y. 484. The omission to unite as a party in foreclosure one to whom the plaintiff has assigned a partial interest in the mortgage will not invalidate the decree of foreclosure or furnish a ground for collateral attack on the part of the purchaser, but the equity of redemption in such case will be effectually barred. Batterman v. Albright, 122 N. Y. 484, 34 St. Rep. 131. Where an emergency occurs which renders futile a demand upon a trustee of a corporate mortgage to foreclose the same, such as his absence abroad or his insanity, a bondholder may maintain such an action. In such case, the appointment of a new trustee before bringing the action is not necessary. Ettlin- ger V. Persian Rug & Carpet Co. 142 N. Y. 189, 36 N. E. Rep. IOS5, 58 St. Rep. 303. As to the proper parties plaintiff on foreclosure of a contract for sale of lands where the vendor has died, see CJiampion v. Brown, 6 Johns. Ch. 398; Moors v. Burrozvs, 34 Barb. 173; Adams v. Green, 34 Barb. 176; Lewis v. Smith, 9 N. Y. 502; Thomson v. Smith, 63 N. Y. 301 ; Schroeppel v. Hopper, 40 Barb. 425. Sub. 2. Necessary and Proper Parties Defendant. § 1627. § 1627. Person liable for mortgage debt may be made defendant, etc. Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage, may be made a defendant in the action; and if he has appeared, or has been personally served with the summons, the final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of 346 FORECLOSURE. Art. 2. Parties Plaintiff and Defendant. the mortgaged property, and the application of the proceeds, pursuant to the di- rections contained therein. Vested remaindermen under a will are necessary parties to an action to foreclose a mortgage given by a testator. Levy v. Levy, 79 Hun, 290, 60 St. Rep. 561, 29 Supp. 384, 31 Abb. N. C. 468. Where a mortgagor was a bankrupt and neither he nor his assignee were made parties to the foreclosure, it was held that the title of the assignee was not divested by a judgment in a subse- quent action brought by the administrator of the mortgagee who had bought in the property at a former sale in foreclosure, a second suit being brought against him individually and not as assignee. TozvnsJiend v. Thompson, 46 St. Rep. 847, 18 Supp. 870, citing Landon v. ToivnsJiend, 112 N. Y. 93, reversing 44 Hun, 561, holding that to bind the estate of a bankrupt in the hands of his assignee by a judgment of foreclosure in a suit com- menced after the bankruptcy and after title to the mortgaged property has become vested in the assignee, it is indispensable that the suit should be brought against him distinctively in his representative or official character or at least that it should in some way appear on the face of the proceedings that they related to and affected the bankrupt's estate. It is not sufficient that he is individually made defendant, in the absence of an averment in the complaint of his representative character or an answer or appearance by him in that character. Contra, Graham v. Foun- tain, 2 Supp. 598. In Scholle v. Scholle, 113 N. Y. 261, it is held that where remaindermen took a vested interest in lands, such interests were not cut off by a foreclosure suit, to which they were not made parties. An assignee in bankruptcy, whose title is subject to a mortgage, is a necessary party to an action of foreclosure. Ostrander v. Hart, 30 St. Rep. 170. A party in possession at the time of the commencement of an action of foreclosure is a proper party defendant in the absence of any allegation or evidence that such party was in possession under some right or title superior to the mortgagor. Riiyter v. Reid, 31 St. Rep. 387. So is a pur- chaser at a tax sale. Ruytcr v. Nickes, 22 St. Rep. 200. The as- signor of a mortgage where it has been assigned as security should be made a party. Matter of Gilbert, 104 N. Y. 200. Failure to make a general assignee a party is cured after the lapse of twenty-five years. Kip v. Hirsch, 103 N. Y. 565. FORECLOSURE. 347 Art. 2. Parties Plaintiff and Defendant. On foreclosure of a mortgage given by one to whom a testa- mentary trustee had conveyed property, without consideration, under an agreement for an immediate reconveyance, neither the beneficiaries under the will, nor the heirs-at-law of the testator were made parties, which fact was not known to the purchaser at the time of the sale, it was held to be a fatal defect in the title. Phillips V. Wilcox, 12 Misc. 382. Where a judgment creditor whose judgment w^as recovered prior to the execution of the mort- gage was not a party, such creditor was held not affected by the decree and is not a proper party. Sumner v. Skinner, 80 Hun, 201, 61 St. Rep. 797, 30 Supp. 4. Under the rule in chancery proceedings in force at the time of the foreclosure in 1838, personal service of the writ upon plain- tiff was not necessary, but service on the husband was a good service on both, and this was so although she was at the time underage. Feitjierv. Lewis, iig^.Y . 131. Under the chancery practice in an action for foreclosure where the wife had only an inchoate right of dower, service of summons on the husband was good for both husband and wife. Ferguson v. Smith, 2 Johns. Ch. 139; Leavitt v. Cruger, i Paige, 421. That rule has been abolished and where the wife is not per- sonally served, a judgment recovered in the action is void as to her, and where a mortgage given by a man and wife is foreclosed, and the wife is not served with the process in the foreclosure action, she may, after a sale of the mortgaged premises and during the life-time of the husband, maintain, because of her inchoate dower interest, an action to redeem the mortgaged premises. Taggert V. Rogers, 49 Hun, 265. Same rule is held in Campbell v. Ell- tvanger, 81 Hun, 259, After a purchase-money mortgage was signed by the mortgagee, it was discovered that the premises were wrongfully described, the mortgagee and wife then executed and delivered a new deed and an agreement was made correcting the mortgage, helel that the mortgagee had no further interest in the enforcement of the mortgage and was not a necessary or proper party to an action to foreclose the same. Haaren v. Lyons, 30 St. Rep. 416, It was held in the United States Trust Co. v. Roche, 116 N. Y. 120, upon the facts in that case, that where the interest of a per- son in the mortgaged property was contingent upon his surviving another, he had no vested legal estate in or lien upon the premises, 348 FORECLOSURE. Art. 2. Parties Plaintiff and Defendant. or a vested interest in the avails when converted into money and so was not a necessary party to the action. Although where the mortgagor has conveyed his interest he is not a necessary party to foreclosure, yet if he is not made a party, it is necessary to make one deriving title or interest from him subsequent to the mortgage a party in order to bar his right of redemption. For the purpose of charging subsequent grantees or incumbrancers not made parties, the fact that the mortgagor has conveyed the property does not obviate the necessity of serv- ing summons and complaint on him and charging him by the decree. Kjirsheedt v. Union Dime Savings Institution, ii8 N. Y. 358, S. C. 28 St. Rep. 933, affirming 7 St. Rep. 874. Where the rents and profits derived from real property are di- rected to be invested and the income to be divided, the parties for whose benefit the provision is made, are not necessary parties to the foreclosure. Mutual Life Ins. Co. v. Woods, 21 St. Rep. 341. Nor are unsecured creditors of a railroad corporation neces- sary or proper parties to an action to foreclose a mortgage upon the property of the corporation. Nor is the receiver of such corporation a necessary party, or the people when an action has been commenced to dissolve the corporation, although the court has power to allow either the receiver or the people to intervene in the action. Herring v. N. Y. L. E. etc. Co. 105 N, Y. 340. One who has an interest in the land, the deed of the whole of which was made to another, may be made a party if he desire. Johnston v. Donovan, 106 N. Y. 269. Beneficiaries of a trust are necessary parties. Lockinan v. Reilly, 95 N. Y. 64. Persons against whom an estoppel is claimed are necessary parties. Lyo7i V. Morgan, 143 N. Y. 505. Where there was a fraudulent prior foreclosure and the record qf the first foreclosure showed the interests and probable relation of the widow and children, that was enough to put any one dealing with the title upon notice. Kir sell V. Tozier, 143 N. Y. 390; General Synod v. O'Brien, 13 Misc. 729. A person to whom a conveyance is to be made, but is not yet delivered, in not a necessary party. Hatfield v. Malcolm, 71 Hun, 51, Nor a former owner when divested of all title. Connecticut Mutual Life Ins. Co. v. Cormvall, 72 Hun, 199. Nor the holder of mortgage recorded after devolution of title unto a bona fide purchaser for value. Abraham v. Mayer, 7 Misc. 250. Nor a FORECLOSURE. 349 Art. 2. Parties Plaintiff and Defendant. .subsequent grantee in possession under an unrecorded deed. Powell V. yenkins, 14 Misc. 83. The mortgagor, if he has not parted with his title, is a necessary- defendant. Reed V. Marble, 10 Paige, 409; Griswold v. Foivler, 6 Abb. 113; Kay v. Whittaker, 44 N. Y. 565; Raynor v. Sehnes, 52 N. Y. 579; Watson v. Spence^ 20 Wend. 260; Hall v. Nelson, 14 How. 32. Or if he has conveyed by an unrecorded convey- ance. Ostrom V. McCann, 21 How. 431 ; Kipp v. Brandt, 49 How. 358 ; Hallv. Nelson, 14 How, 32, supra. He is not a necessary party where he has parted with his title by a recorded conveyance. Trus- tees v. Yates, I Hoff. Ch. 142; Griswold v. Fowler, 6 Abb. 133; Whit7iey v. Mc Kinney, 7 Johns. Ch. 144 ; Bigelow v. Bush, 6 Paige, 343; Van Nest v. Latson, 19 Barb. 604. See Root v. Wright, 21 Hun, 344, reversed on another point, Walton v. James, 1 1 Week. Dig. 508. The real owner of mortgaged premises does not forfeit his right to be made a party to an action to foreclose the mortgage by omission to record his deed ; and provided he make application in due time, it is the duty of the court to direct him to be brought in. Johnson v. Donovan, 106 N. Y. 269. Persons who have absolutely conveyed all their interests in the equity, and who, as between parties, bear only the relation of sureties as to the personal obligation of one party to pay the bond, are not neces- sary parties, though they may be proper. Root v. Wright, 21 Hun, 34, reversed on another point, 84 N. Y. 72. Where the bond is executed by the mortgagors and another, it is proper to make all parties and demand judgment against all. Thoryie v. Newby, 59 How. 120. The holder of the equity of redemption is a necessary defendant. Hall v. Nelson, 14 How. 32 ; Miner v. Beekman, 50 N. Y. 337; Raynor v. Selines, 52 N. Y. 579; Wins- low V. Clark, 47 N. Y. 261 ; Robinson v. Ryan, 25 N. Y. 320. The failure to make the purchaser a party will be waived if not pleaded. Davis v. Bcchstein, 69 N. Y. z^.o. But intermediate purchasers, who retain no interest, are not necessary defendants. Lockwood V. Betiediet, 3 Edw. Ch. 472. In case deficiency is sought against any of these parties, of course they are necessarily made parties. If the mortgagor died holding the title, his heirs should be made defendants. Noonan v. Brennerman, 8 St. Rep. 91 ; Woodv. Morehouse, i Lans. 405 ; Doddv. Neilson, 90 N. Y. 243. It is held in Leonard v. Morris, 9 Paige, 90, that the personal I'epresentativcs of a deceased mortgagor are not necessary parties ; 350 FORECLOSURE. M An. 2. Parties Plaintiff and Defendant. the contrary is held in Shaw v. McNish, i Barb. Ch. 328. The wife of the owner of the equity of redemption is a necessary party. Wheeler V. Morris, 2 Bosw. 524; Denton v. Nanny, 8 Barb. 618; Vartie v. Undertvood, 18 Barb. 561 ; Mills v. Van Voorhis, 20 N. Y. 412; Bell w. Mayor, 10 Paige, 49; Merchants' Bank v. Thomp- son, 55 N. Y. 7. The personal representatives and not the heirs of a deceased subsequent mortgagee are necessary and proper par- ties. German Savings Bank V. Mnller, 10 Week. Dig. 67. Where a mortgagor, who was personally liable for any deficiency, is dead, his representatives may be made parties, and a decree rendered that the deficiency be paid out of the estate in their hands in due course of administration. Glaciiis v. Fogcl, 88 N. Y. 439. Plain- tiff is entitled to have the deficiency paid from the mortgagor's personal estate after his death, and so much as is caused by the mortgagor's omission to pay taxes is a preferred debt. Mitchell V. Bownc, 63 How. i. It seem^s that legatees, devisees, heirs or next of kin of one who was personally liable for the payment of I a mortgage may be joined as defendants to charge them with I statutory liability for deficiency to the extent of the assets received ''by them. Collins' Petition, 6 Abb. N. C. ij . Contract creditors of a decedent cannot be allowed to defend against a foreclosure on real estate owned by him in his lifetime. Gardner v. Lansiftg, 28 Hun, 413. Where the will directs the executors to sell the real estate, divide the proceeds among the residuary legatees, and the legatees elect to take the land, the executors are not neces- sary parties. Prentice v. Jansen, 7 Week. Dig. 318. In Kay v. Whittaker, 44 N. Y. 265, it is said that the wife need not be joined in order that the action may be maintained, but that her interest is not affected by such an action. The v/ife is a necessary party if married after the g'ving of the mortgage. Smith V. Gardner, 42 Barb. 356. As to whether the wife is a necessary party to the foreclosure of a purchase-money mortgage, see Mills v. Va)i Voorhees, 20 N. Y. 412, and Breckett v. Baum^ 50 N. Y. 8. Persons having liens on the mortgaged premises as legatees are necessary parties. McGozun v. Ycrks, 6 Johns. Ch. 450; Hebron Society v. Schoen, 60 How. 185. If the equity of redemption is vested in a trustee, both the trustee and cestui que trust should be made parties. Williamson v. Field, 2 Sandf. Ch. '533; Casew. Price, 9 Abb. in; Grant v. Duane, 9 Johns. 591 ; Paton v. Murray, 6 Paige, 474 ; Nodine v. Greenfield, 7 Paige, 547 ; FORECLOSURE. 351 Art. 2. Parties Plaintiff and Defendant. Leggett V. Mutual Ins. Co. 64 Barb. 36; Ransom v. Lainpman, 5 Barb. 456; Eagle Fire Ins. Co. v. Cainviet,2 Pldw. Ch. 127; Rath- bone V. Hooney, 58 N. Y. 463 ; King v. McVickers, 3 Sandf. Ch. 192 ; Toole w. McKiernan, 48 Super. Ct. 163 ; Doddw.Neilso?i,go N.Y. 243. See Fb:« Vechtenv. Terry, 2 Johns. Ch. 197; Christie v. Herrick, I Barb. Ch. 254. Where beneficiaries were very numerous the rule was relaxed. In case of trustee for creditors the creditors are not necessary parties. Grant v. Duanc, 9 Johns. 591. Reversioners and remaindermen arc necessary parties, but not every person having a contingent interest. Eagle Ins. Co. v. Cainmet, 2 Edw. Ch. 127; Nodine v. Greenfield, 7 Paige, 547; Leggett \. Mutual Life Ins. Co. 64 Barb. 36; Rathbone v. Hooney, 58 N. Y. 463; Brevoort v. Brevoort, 70 N. Y. 136; Lockzvood \. Reilly, 10 Abb. N. C. 351- The assignee in bankruptcy of the holder of the title is a neces- sary defendant. Cleveland v. Boeruin, 24 N. Y. 617. But not if appointed after suit brought. Lenihan v. Haniann, 55 N. Y. 652 ; Wagner v. Hodge, 34 Hun, 524. A general assignee is also a necessary defendant. Bard v. Pool, 12 N. Y. 475. Persons not judicially declared to be of unsound mind may be made parties with the same force and effect as if sane. Prentiee V. Cornell, 31 Hun, 167, citing Mut. Life Ins. Co. v. Hunt, 14 Hun, 169; Sanford v. Sanford, 62 N. Y. 553. Tenants under a lease subsequent to the mortgage and actual occupants of the mortgaged premises are necessary parties. Hirseh v. Livittgston, 3 Hun, 9; Whale n v. White, 25 N. Y. 462; Clark son v. Skidmore, 47 N. Y. 297; Globe Marble Mills v. Quinn, 76 N. Y. 23. In order that the purchaser may obtain a perfect title, subsequent lienors are necessary defendants, as are holders of subsequent mortgages. If not a party he may redeem. Arnot v. Post, 6 Hill, 65 ; Frank- lyn V. Hayward, 61 How. 43; Benedict v. Gihnan, 4 Paige, 58; Vroom V. Ditrnas, 4 Paige, 526; Vanderkemp v. Shelton, 11 Paige, 28; Brainard v. Cooper. 10 N. Y. 356; Gage v. Brewster, 31 N. Y. 218; Pcabody v. koberts, 47 Barb. 91 ; Benjamin v. Elmira, etc. R. R. Co. 54 N. Y. 675. And the liens of judgment creditors will not be cut off unless they are made parties. Niagara Ba?ik V. Roosevelt, 9 Cow. 4C9; People's Bank v. Hamilton Manuf. Co., 10 Paige, 481 ; Morris v. Wheeler, 45 N. Y. 708; Verdin v. Slocum, 71 N. Y. 345; Hubbcll V. Sibley, 5 Lans. 51 ; Weinbrewer v. Johnson, 7 Abb. (N. S.) 202; Root v. Wheeler, 12 Abb. 294; 35- FORECLOSURE. Art. 2. Parties Plaintiff and Defendant. Groff V. Morehouse, 51 N. Y. 503; Lyon v. Lyon, 6y N. Y. 250. J udgment creditors who are not lienors are not necessary parties. Spring V. Short, 90 N. Y. 538. Nor are general creditors. Gard- ner V, Lansings 28 Hun, 413 ; People v. Erie Railway Co. 56 How. 122. Holders of valid mechanics' liens are necessary parties in order to cut off their liens. Payne v. Wilson, 74 N. Y. 348 ; Emi- gra?it Savings Bank V. Goldman, 75 N. Y. 127. It is proper to make purchasers at tax sales parties defendant. Becker v. Howard, 4 Hun, 359; s. C. 69 N. Y. 5. On motion for reargument, Roosevelt Hospital v. Dow ley, 57 How. 489. The husband of the owner of the equity of redemption is not a necessary party. Mapes v. Brown, 14 Abb. N. C. 94; Trustees, etc. V. Roth, 14 Week. Dig. 459, A married woman taking a conveyance and assuming a mortgage, is liable as if she were sole; Cashman v. Henry, 75 N. Y. 103; and where a married woman owns the equity her judgment creditors are necessary parties, Morris v. Wheeler, 45 N. Y„ 708. Where the ownership of the mortgage h disputed, the various claimants may be made parties. Kortright v. Smith, 3 Edw. Ch. 402. See note, 5 Civ. Pro. R. 108, as to who should be defend- ants in foreclosure. No person should be made a party except those who have title to or lien upon the premises. Gardner v. L^ansing, 28 Hun, 413. But one who has or claims to have an interest in the premises subordinate to that of plaintiff is a proper defendant in foreclosure. Mutual Life Lns. Co. v. Hoyt, 15 Week. Dig. 489. The only proper parties are the mortgagor, the mortgagee, and those who have acquired rights under them, subject to the mortgage, and these parties only are affected by the judgment of foreclosure. Emigrant Savings Bank v. Gold- man, 75 N. Y. 127; Kent v. PopJiam, 6 Civ. Pro. R. 336. Where the grantee covenants to pay the mortgage he becomes the prin- cipal debtor, and is liable for deficiency. Fleischauer v. Gug- ^enheimer, 15 Week. Dig. 164. In an action which arose pre- vious to the present Code, it was held, that one who, in an assignment of a bond and mortgage, guaranteed its payment " by due foreclosure and sale," is a proper defendant. Vanderbilt v. Schryer, 91 N. Y. 392. A city need not be made a party where it has taken a portion of the property for public use. Hooker v. Martin, 10 Hun, 302. One whose mortgage is recorded but not indexed is a necessary party to the foreclosure of a prior mort- FORECLOSURE. 353 Art. 2. Parties Plaintiff and Defendant. gage, and if not joined, the foreclosure is void as to him. Mt4- tual Life Ins. Co. v. Dake, i Abb. N. C. 381, affirmed, 87 N. Y. 257. An assignee of a judgment who took it only to collect for the assignor, and has sold the land and received a sheriff's deed is not a necessary party ; only the assignor need be made a party. McKce V. Murphy, 34 Supr. Ct. 261. Grantees of the mortgaged premises whose deed, though executed, is unrecorded, are not necessary parties, they are bound by the judgment. Kindbery v. Freeman, 39 Hun, 466. If under a will the fee of the testator's realty is vested in his heirs-at-law, they must be made parties to the foreclosure of a mortgage existing at the time of the testa- tor's death, and it is not enough to join the executor. Noonan V. BrennemaJin, 8 St. Rep. 91. A grantee of lands whose deed was not recorded until after a deed of the same premises given by his grantor to another, and then only in the book of mortgages, is not a necessary party to an action to foreclose a mortgage given by his grantor to which a subsequent grantee was made a party. Abraham v. Mayer, 7 Misc. 250, 27 Supp. 264, 58 St. Rep. 29. The possession of the grantee under an unrecorded deed is not notice which will require him to be made a party to a foreclosure action unless such possession is actual, open and visible, and not equivocal or consistent with the title of the apparent owner by the record. Potvcllv. Jenkins, 14 Misc. 83, 35 Supp. 265, 69 St. Rep. 582. The Code of Procedure, § 132, relative to lis pendens, and § 1670 and 1671, Code of Civil Procedure, contemplate that those whose conveyances appear by the record should be made parties in order to charge with the result of the action those holding under or through them not made parties, whose interests do not so appear at the time of such filing, although where the mortgagor has conveyed his interest he is not a necessaiy party to the foreclosure. If he is not made a party, it is necessary to make one deriving title or interest from him, subsequently to the mortgagor, a party in order to bar his right of redemption ; for the purpose therefore of charging subsequent grantees or in- cumbrancers not made parties, the fact that the mortgagor has conveyed the property does not obviate the necessity of serving the summons and complaint upon him and charging him by the decree. Ktirshccdt v. Union Dime Savings Institution, 1 18 N.Y. 358. [Special Actions — 23.] 354 FORECLOSURE. Art. 2. Parties Plaintiff and Defendant. Where a mortgage was executed in 1853 and the mortgagor shortly afterward left the State, he being a sailor, and has never since been heard from, on foreclosure the mortgagor was made defendant and also all unknown owners, such owners being therein described as the wife, widow, heirs-at-law, devisees, gran- tees, assignees or next of kin, if any, of said defendant, and their respective husbands and wives, if any, all of whose names were unknown ; held, that the unknown parties were properly desig- nated ; that judgment could be entered against them without evi- dence that they were, in fact, unknown or absentees, or that the mortgagor died without heirs-at-law or next of kin, and that a sale on the foreclosure conveyed a good title. Moran v. Conomo, 36 St. Rep. 680. The owner of the equity of redemption is a necessary party, and if the suit proceeds without him the title will not be affected. Landon v. Toiv7ishend, 16 Civ. Pro. R. 161, reversing 44 Hun, 561. See, as to effect of making a person entitled to dower party defendant. Article V, Subd. 4. Sub. 3. Prior Lienors not Proper Parties. Prior incumbrancers are neither necessary nor proper parties to an ordinary action for foreclosure. Goebel w. Iffla, in N. Y. 170. Nor any person claiming under a title paramount to the mortgage. Helck v. Reinheimcr, 105 N. Y. 470; Ruyter v. Rcid, 121 N. Y. 498 ; and where the rights of such a party are paramount and adverse to claim of plaintiff under the mortgage, they cannot be adjudicated in the action unless such defendant consents thereto. Crotmvcll v. McLean, 123 N. Y. 474, cited Oliphant v. Burns, 146 N. Y. 218. See Nelson v. Brozvn, 144 N. Y. 384. Prior mortgagees are not necessary parties. Ferris v. Hard, 17 St. Rep. 364; s. c. 15 Civ. Pro. R. 171. Prior assignor of the creditor is a proper but not a necessary party to foreclosure. Merrill v. Bischoff, 3 App. Div. 361. Only such persons are required to be parties to a foreclosure as have acquired rights or interests or claim so to have done subse- quent to the mortgage. Any interest acquired prior thereto can- not be considered or determined in such an action. Brain v. Bram, 34 Hun, 487. It seems also that where one is in possession of land claiming title under a conveyance on a tax sale, he is not a proper party to FORECLOSURE. 355 Art. 2. Parties Plaintiff and Defendant. the action to foreclose a mortgage upon the land given prior to the sale, his rights are paramount and adverse and the claim of the defendant may not, therefore, be adjudicated in the action. Such person, however, when made party defendant, may consent that the question as to the validity of his title be adjudicated therein and in which case the court has the right to pass upon the question. And where a defendant incorporated in her pleading a positive request that such question be passed upon, the judgment in the action is binding upon all parties. Cronnvcll v. McLanCy 123 N. Y. 474, 34 St. Rep. 85, citing Helck v. Reinlieimer^ 105 N. Y. 470. Although the holder of a prior mortgage is not a proper party and his interest will not be cut off under a complaint containing the usual allegation that defendant's interest is subordinate to that of plaintiff, yet where the complaint alleges the prior incum- brance and prays that the amount due thereon be ascertained and first paid out of the proceeds of the sale, and the defendant suffers default, he is concluded thereby and the judgment operates as a bar to a subsequent action to foreclose his mortgage ; he should appear and raise an objection by demurrer or answer that his rights cannot be adjudicated. Jacobie v. Mickle, 144 N. Y. 237, 63 St. Rep. 102 ; Fletclier v. Barber, 82 Hun, 405, 63 St. Rep. 568, 31 Supp. 239. Persons who make claims under a paramount title are not neces- sary parties to an action of foreclosure. Fifth Avoiue Bk. of Brooklyn v. Cudlipp, i App. Div. 524, 37 N. Y. Supp. 248, 72 St. Rep. 528. In an action to foreclose a mortgage, one vv'ho claims adversely to the mortgagor and mortgagee, and whose claim arose prior to the mortgage, cannot properly be made a party defendant for the purpose of trying the validity of such adverse title. Dinnond v. Church, 4 App. Div. 194. The mortgagee has no right to make a person, claiming title to the premises adversely to that of the mortgagor, and prior to the mortgage, a defendant. Lcicis v. S?nith, 9 N. Y. 502; Meigs y. Willis, 5 Civ. Pro. R. 106; Corning v. Smith, 6 N. Y. 82; Ne/ek V. ReinJieinier, 23 Week. Dig. 473 ; Brnndage v. Domestie, etc. Society, 60 Barb. 204; Kent v. Pophani, 6 Civ. Pro. R. 366; Brant V. Br am, 34 Hun, 487; Mercantile Trust Co. v. Rochester, etc. Ry. 22 Week. Dig. 65 ; Ratlibone v. Hooney, 58 N. Y. 463 ; Keeler v. 356 FORECLOSURE. Art. 3. Complaint and Notice of Pendency of Action. McNcirney, 6 Civ. Pro. R. 363; Merchants Bank v. TJiompson,^^ N. Y. 7; Emigrant Bank v. Goldman, 75 N. Y. 127; Smith v. Davis, \Q\\. Pro. R. 158. Persons claiming to be prior lienors are proper parties. Brown v. Volkening, 64 N. Y. 76; Adams v. McPartlin, 11 Abb. N. C. 369. For the purpose of ascertaining amount of lien. Smith v. Roberts, 91 N. Y. 470. See Frost v. Yonkers Savings Bank, 70 N. Y. 55; Hamlin v. McCahill, Clarke's Ch. 249. They may be made parties for the purpose of ascertaining amount of claim. Metropolitan Trust Co. v. T. V. &■ C. R. R. Co. 43 Hun, 521. A judgment creditor of the mort- gagor's grantor cannot be made a party for the purpose of hav- ing his judgment declared subsequent and subordinate to the mortgage. Kettt v. PopJiam, 6 Civ. Pro. R. 336. ARTICLE III. Complaint and Notice of Pendency of Action. 1631. Sub. I. Complaint. § 1629. 2. Notice of pendency ok action. § 1631. ^§ 1629, Sub. I. Complaint. § 1629. Complaint to state whether such action brought. The complaint, in an action to foreclose a mortgage upon real property, must state, whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part thereof has been collected. The allegation that the defendants named have, or claim to have, some interest in or lien upon the premises which, if any, is subsequent to plaintiff's mortgage, is a sufficient statement of a cause of action against such defendants. Drury v. Clark, 16 How. 424; Frost V. Coon, 30 N. Y. 428. It is said that the nature of the interest of infant defendants should be stated. Aldrich v. Lapham, 6 How. 129. The complaint must allege default in payment, and where neither a default nor any facts from which it could be inferred to exist, were alleged or set forth in the complaint, it was held demurrable. Davies v. New York Concert Co. 5 St. Rep. 21. If proceedings have been taken on the bond, that fact should be stated. See § 1628. Lovett v. German Reformed Church, 12 Barb. 68. Demand of payment need not be averred where no place of payment is specified in the bond or FORECLOSURE. 357 Art. 3. Complaint and Notice of Pendency of Action. mortgage, although payable on demand. Harris v. Muloch, 9 How. 402 ; Field v. Hazvxhurst, 9 How. 75 ; Gil/eit v. Balcom, 6 Barb. 370. Where the complaint alleges the giving of a bond, there must be an allegation of default in the performance of its condition. Coulter v. Bower, 64 How. 132. Where a bond and mortgage is executed by an executor or trustee and purports to have been executed in such capacity, it is not necessary to allege that the mortgagor was, in fact, such executor or trustee and the facts as to his appointment ; otherwise where the action is brought to recover a debt due from a testator. Skelton v. Scott, 18 Hun, 375- The provisions of the statute requiring an heir or devisee taking real estate subject to a mortgage, to pay the mortgage, does not require any additional allegations in a complaint which seeks to charge the personal representatives with a deficiency. Glacius v- Fogel, 88 N. Y. 439. An omission to ask for judgment for defi- ciency does not convert the action into a strict foreclosure. Eqziitable Life Ins. Co. v. Stevens, 63 N. Y. 341. Where the mortgage and bond were executed before the enabling act, and the only allegation is that the husband and wife signed, judgment for deficiency cannot be taken against the wife. Manhattan Life Ins. Co. v. Glover, 14 Hun, 153. It is not necessary to allege in the complaint the indebtedness for which the bond and mortgage were given, and, if alleged, it need not be proved. Day v. Per- kins, 2 Sandf. Ch. 359. The bond and mortgage should be correctly described though a mere technical variance will be disre- garded. Hadley \. Chapin, 11 Paige, 245. The several assign- ments of the mortgage should be set out in full. Thorn v. Desmond, 12 How. 321 ; Rose v. Myer, 7 Civ. Pro. R. 219. It is not necessary to allege the recording of an assignment. Fryer v. Rocker feller, 63 N. Y. 268. See § 1628 as to require- ment as to allegation concerning proceedings at law, and § 1630 as to when foreclosure is not maintainable. A personal judg- ment cannot be had against a party not appearing, unless asked for in the complaint. French v. New, 20 Barb. 484 ; Bullwinker v. Ryker. 12 Abb. 311 ; Simonson v. Blake, 20 How. 484. Where the complaint, in an action of foreclosure set out the indebted- ness of the mortgagors upon notes indorsed by them and dis- counted by plaintiff, and alleged the mortgage was given to secure the payment of a bond, by which the time of payment of 358 FORECLOSURE. Art. 3. Complaint and Notice of Pendency of Action. such indebtedness was extended, and that the obligors had failed to comply with the conditions of the bond, Jicld, that the facts constituted a cause of action. Troy City Bank v. Bozvman, 43 Barb. 639. Complaint in foreclosure of a mechanic's lien which merely alleged due notice to the defendant, etc., Iield, insufificient on demurrer as an allegation of law. KecJiler v. Stiitnme, 36 Supr. Ct. 337. Where a mortgagor's wife, who did not join in the mortgage, is a party, and it is not alleged that the mortgage is superior to her right of dower, she is not barred of dower. Mer- chants Bank V. Thompson, 55 N. Y. 7. A complaint in an action to foreclose an unrecorded mortgage, in which the holder of a prior mortgage is joined as defendant, may allege generally that the latter has, or claims to have, an interest in or upon the mort- gaged premises, or some part thereof, which, if any, is subse- quent to the lien of plaintiff's mortgage ; no special allegations are necessary. Constant v. American Benevolent, etc. Society, 53 Supr. Ct. 170. A complaint alleging the making and deliveiy of the mortgage, the correctness of the description and that part of the debt had become due and unpaid together with the other formal allega- tions required for the purpose of foreclosure, is sufficient to pre- sent a cause of action. Haaren v, Lyons, 9 N. Y. Supp. 211, 30 St. Rep. 416. An omission to allege in the complaint the assignment of the bond as well as of the mortgage does not make a complaint invalid, especially when the assignment of the mortgage covers that of the bond, and is of record, and a reference to compute what was due on both had been had. Preston v. LoiigJiran, 34 St. Rep. 391. Where the execution of a mortgage given to secure moneys used to pay of? a prior incumbrance is denied, the holder of the mortgage on foreclosing may ask as alternative relief, that if he fails to establish its execution he may be held entitled to enforce the prior incumbrance. Campbell v. Campbell, 23 Abb. N. C 187. Where a complaint sets forth an agreement by defendant that a mortgage is a first lien, a breach of that agreement states a good cause of action, although it does not aver, in terms, that the de- fendant warranted the mortgage to be a first lien. Hyde v. Eck ler, 20 Week. Dig. 3 1 . FORECLOSURE. 359 Art. 4. Answer and Defences. Allegations that the owner of the equity of redemption con- veyed a part of the mortgaged premises, that the grantee retained a sum to discharge the mortgage, and that the claim of the money so retained was assigned to plaintiff, do not set up an independent cause of action, but merely show that the premises sought to be foreclosed are primarily liable for the mortgage debt. Wood v. Harper, 85 Hun, 457, 32 Supp. 880, 66 St. Rep. 160. Sub. 2. Notice of Pendency of Action. § 1531. § 1631. Notice of pendency of action tc be filed The plaintiff must, at least twenty days before a final judgment directing a sale is rendered, file, in the clerk's office of each county where the mortgaged property is situated, a notice of the pendency of the action, as prescribed in section 1670 of this act; which must specify in addition to particulars required by that section, the date of the mortgage, the parties thereto, and the time and place of recording it. The requirements as to a notice of pendency and its effect is considered and authorities cited under chapter 10, §§ 1670 to 1674, ARTICLE IV. Answer and Defences. Sub. I. Answer generally. 2. Counterclaim. 3. Tender as a defence. 4. Demurrer. 5. Relief granted defendants. Sub. I. Answer Generally. A holder of a tax deed cannot as a defendant defeat plaintiff's title by simply asserting in her answer that she has or claims to have a title paramount and superior to him, without showing what that title is and how derived. Ruyter v. Reid, 33 St. Rep. 590. Where the answer alleged the assignment to plaintiff was not made bona fide but for the purpose of preventing a defendant from setting up a defence to the mortgage, to the effect that plaintiff's assignor prevented defendant from obtaining possession of and selling the land, it was held that the defence as stated did not import a legal demand in favor of the defendant. Cochrane v. Bauer, 25 St. Rep. 510. 360 FORECLOSURE. Art. 4. Answer and Defences. As to when actual and exclusive possession of part of the premi- ses in another than the mortgagor is a good defence to the occu- pant holding under an unrecorded title, see Bassett v. Wood, 29 St. Rep. 901; Phelan v. Brady, 119 N. Y. 587. A purchaser of mortgaged premises who takes the deed subject to the mortgage is estopped from contesting the consideration or validity of the mortgage ; and so long as he remains in possession of the premises cannot defend because of failure of title. Mc- Conihe v. Falcs, 107 N. Y. 404. In an action to foreclose for the whole principal sum by reason of failure to pay an installment, an answer denying the non- payment of such installment is not frivolous. Gruenstein v. Jab- lonsky, I App. Div. 580, 37 N. Y. Supp. 538, sub nom. Gruen- stein V. Biersack, 73 St. Rep. 1 54. So a grantee of mortgaged premises cannot avail himself of the defence of usury; under like circumstances the defence of usury is personal to the mortgagor. Golden v. Wooster, 10 St. Rep. 435. But the defence of want of consideration is available against an assignee of the mortgage as he stands in respect to the security in place of the assignor although a bona fide purchaser. Briggs V. Langford, 107 N. Y. 680 ; Hill v. Hoole, 116 N. Y. 299. An answer alleging an agreement on the part of one defendant by which he conveyed the premises to certain other defendants they to advance money to pay debts and interest, and to reconvey subsequently on repayment and also setting up a breach of that condition and asking for specific performance of the contract, was held to be no defence to the mortgage and that foreclosure should not be delayed thereby. Mutual Life Ins. Co. v. Cran- well, 32 St. Rep. 376. A denial by defendants that they have or claim to have an interest in the premises which accrued subsequent to the lien of the mortgage, is not inconsistent with the further defence of pay- ment ; both defences may stand. Moody v. Belden, 38 St. Rep. 722. Nor is it a defence that by the terms of the lease, the lessor had a right to insist upon a forfeiture where the action is to fore- close a mortgage upon the interest of the lessee against the latter's assignee. Kribbs v. Alford, 9 St. Rep. 617. It is not a defence to the foreclosure of a purchase-money mortgage that the original mortgagee failed to carry out an agreement made at the time to satisfy a judgment which was an apparent lien upon the FORECLOSURE. 361 Art. 4. Answer and Defences. premises where no steps have been taken to enforce such judg- ment and the defendants have suffered no injury thereby. Soule V. Dixon, 17 St. Rep. 360. Where the proof showed that alleged alterations were made prior to delivery and by the draughtsman who stood in the rela- tion of stranger to the parties, a defence that a mortgage had been altered by changing the dates was held insufficient. Fanning v. Vrooman, 12 St. Rep. 393. It is no defence for the wife who ex- ecutes a mortgage on her property to enable her husband to ob- tain money to run his business, that the husband, instead of procuring moneys thereon, delivered the mortgage to his credi- tors in settlement of his debt to them. Laidlaw v. Slaybeck, 23 Week. Dig. 259. Nor is it a defence to a wife who executes a mortgage without specifying the purpose for which it is to be used, and allows her husband to use it, to claim upon his using it as collateral security for the debt due from his firm, that the mortgage was diverted from the purpose for which it was made. MacLaren v.Percival, 102 N. Y. 675. It is no defence to an action on a deficiency judgment that the mortgagor made a profit upon his purchase of the mortgaged premises. Schultz v. Mead, 8 N. Y. Supp. 663, 29 St. Rep. 203. In an action to foreclose a mortgage held by plaintiffs as assignees for the benefit of creditors of the mortgagees, a defend- ant, who had purchased the premises subject to the mortgage, sought to set off a claim against plaintiff's assignors. It appeared that at the time of the assignment to plaintiffs, the debt secured by the mortgage was not due; that the assignors were insolvent and the party answering endeavored to have his debt, which was due, applied by them upon the mortgage before it was assigned. Held, that he was equitably entitled to the set off; that it was not necessary that the mortgage debts should have been due, as by seeking to have the debt due him applied thereon, defendant treated it as due and so waived any defence he might have based upon the fact that it was not due; that he had a right so to do and to require the set off. Richards v. La Tourette, 1 19 N. Y. 54. Where the Statute of Limitations is pleaded, the burden is on the plaintiff to show that the last payment of interest was made within twenty years. United States Trust Co. v. Stanton, y6 Hun, 32, 27 Supp. 614, 59 St. Rep. 601. An action to foreclose a mortgage may be barred by the Stat- 362 FORECLOSURE. Art. 4. Answer and Defences. ute of Limitations, although an action can be maintained on the bond to which it is collateral. Fozvlcr v. Wood, 78 Hun, 304, 60 St. Rep. 176, 28 Supp. 976. Misrepresentation of the grantor as to capacity of the water power on the demised premises furnished no defence to an action to foreclose a purchase-money mortgage where the deed con- tained no covenants in relation thereto, and no fraud Was alleged or proved and the grantee had been in possession for four months and had an opportunity to ascertain its capacity. DeMilt v. Hill, 89 Hun, 56, 34 Supp. 1060, 69 St. Rep. 4. An answer setting up title in a third person named is not frivo- lous, but shows a good defence. Fotigera v. Moissen, 16 Hun, 237. Defendants are estopped by a certificate that there is no defence to a mortgage. WcyJi v. Boylan, 23 Alb. L. Jour. 513; Smyth v. Miinroe, 84 N. Y. 354, but see Wilcox v. Hozvcll, 44 N. Y. 398. A grantee who has assumed the mortgage may defend if evicted by paramount title. It is not necessary for junior incumbrancers, where their rights are correctly stated in the com- plaint, to appear and answer in order to save their rights. Mer- chants' Ins. Co. W.Marvin, i Paige, 557. But the defendants may set out their respective rights so as to enable the court to make a proper decree as to sale in parcels, and any claim they have to the equity of redemption. Tower v. White, 10 Paige, 395. But they cannot answer litigating claims, as among themselves, to a surplus which may arise on the sale, unless, for some reason, it is necessary to obtain a determination of their respective rights before sale. U)tion Ins. Co. v. Van Rensselaer, 4 Paige, 85 ; Field V. MagJiee, 5 Paige, 539. In foreclosure for non-payment of interest, whereby the prin- cipal becomes due, it is not a defence that defendant was unable to find plaintiff to make the payment, no trick or fraud being im- puted to plaintiff. DwigJit v. Webster, 19 How. 349. It is no defence that the mortgage was for purchase money on a convey- ance with warranty, and that a suit has been commenced against the mortgagor or one claiming under him, for a recovery of the premises under title paramount to that of the mortgagee, which suit is pending and undetermined. Piatt v. Gilchrist, 3 Sandf. 118. A breach of covenant of seizin, like a breach of covenant of warranty, is not, without eviction or disturbance, a defence to an action to foreclose a purchase-money mortgage. Farnani v. FORECLOSURE. 363 Art. 4. Answer and Defences. Hotc/ikiss, 2 Keyes, 9; Curtis v. Bush, 39 Barb. 661. A grantee as.suming a mortgage is estopped from denying its existence and validity. Hailc v. Nichols, 16 Hun, 37. But in Boivcry Savings Bank V. Drake, i Law Bull, 89, it was held, that where a grantee took property subject to a mortgage, which he assumed, but nothing was said about payment of it, or its being part of the consideration, that an answer setting up these facts could not be regarded as frivolous. On foreclosure of a purchase-money mort- gage a defendant, against whom no personal claim was made, alleged a purchase by him from plaintiff's grantee, and that he was the assignee of plaintiff's covenants of warranty and against incumbrances, and had been evicted by a paramount title, under certain taxes which were incumbrances at time of plaintiff's grant. Held, that these facts did not constitute either a defence or coun- terclaim. National Fire Ins. Co. v. McKay, 21 N. Y. 191. Upon the foreclosure of a purchase-money mortgage simultaneously with a conveyance by the mortgagees, who were executors, con- taining no covenants, except against grantors, it is no defence that the property was at the time covered by an incumbrance not existing through, or by reason of, any act of or omission speci- fied in the covenant. Sanford v. Travers, 40 N. Y. 140. When the complaint alleged that no proceeding had been taken at law, it was held that a plea that the plaintiff recovered a judg- ment at law for the same debt was valid, although containing no averment that an execution had issued on such judgment and been returned unsatisfied. North River Bank v. Rogers, 8 Paige, 648. A purchaser of mortgaged premises, who takes a deed sub- ject to the mortgage and assumes and agrees to pay the same, is estopped from contesting its consideration or validity ; and where the mortgage was given by his grantor for purchase money, such grantee, so long as he remains in possession of the premises, can- not defend against the mortgage because of failure of title. Par- kinson V. Sherman, 74 N. Y. 88. A defence of defect of title, which does not aver eviction, is frivolous. Parkinson v. Sherman, 74 N. Y. 88; Parkinson v. Jacobson, 13 Hun, 317. Where a complaint sets forth the execution of a bond, and avers the execution of a mortgage, with the same condition as the bond, an answer which merely repeats the words of the condition, as stated in the complaint, and avers that it is not contained in the mortgage, is not a denial that such was, in substance, the condi- 3^4 FORECLOSURE. Art. 4. Answer and Defences. tion of the mortgage. Dimon v. Dann, 15 N. Y. 498. In an action brought by the assignee of a mortgage, the mortgagor has the right to aver and prove a mistake in the drawing of the instrument and have the same reformed. Andrews v. Gillespie, 47 N. Y. 487. A defendant in foreclosure who has guaranteed, in an assignment of a bond and mortgage, its payment by due foreclosure and sale, may set forth as a defence that the guaranty was without consideration, though there was consideration for the assignment. Vandcrbilt v. Schryver, 91 N. Y. 392. Defendant may plead that plaintiff procured an assignment of the mortgage by fraud, and that the debt has been paid to the mortgagee and a release given. Hall v. Erwin, 57 N. Y. 643. Where plaintiff claims under an assignment, made as security for an illegal trans- action, the illegality is a valid defence. Deivitt v. Brisbane, 16 N. Y. 508. A purchaser who has assumed a mortgage cannot set up usury. Hartley v. Harrison, 24 N. Y. 170. A mortgagor can- not set up a defect in his title. Dime Savings Bank v. Crook, 29 Hun, 671. He may set up payments to the mortgagee without notice of an assignment. Van Keuren v. Corkins, 4 Hun, 129. On foreclosure of a purchase-money mortgage, an answer is suffi- ciently definite which alleges fraud in the sale of the premises as to the lien of a judgment thereon, and demands judgment or a cancelation of the mortgage and recovery of the money paid, or that the amount of the judgment be deducted from the mort- gage. Lyke v.Post, 65 How. 298. A mortgage is not negotiable and subject to defences existing between the original parties; an assignee takes subject to the equities between the parties. Ingra- hani V. Disborough, 47 N. Y. 421 ; Schafer v. Reilly, 50 N. Y. 61 ; Andrews v. Gillespie, 47 N. Y. 487; Unioji College v. Wheeler, 61 N. Y. 88; Davis v. Bechstein, 69 N. Y. 440. A defendant who sets up an equitable title against a mortgagee without actual notice, in order to affect the latter with constructive notice by his possession at the date of the mortgage, should allege that he was then in possession claiming the land as his own. It is not enough to allege that he was in possession at and long before the execu- tion of the mortgage. N. Y. Life Ins. Co. v. Cutler, 3 Sandf. Ch. 177. A warranty of the validity of a mortgage is, in effect, a war- ranty of the validity of the bond, and if the bond is invalid its invalidity invalidates the mortgage, being the principal debt. FORECLOSURE. 365 Art. 4. Answer and Defences. Ross V. Terry, 63 N. Y. 613. A deficiency in the quantity of land purchased is no defence to a purchase-money mortgage if there is no fraud. Northrup v. Siimney, 27 Barb. 196. An answer that the mortgage is not binding, and no lien on the premises is a statement of a conclusion unsupported by facts, and unavailing. Caryl v. William, 7 Lans. 416. A subsequent incumbrancer cannot set up that the conditions of the bond are not in the mort- gage. Kay V. Whittaker, 44 N. Y. 565. An allegation of a con- spiracy to prevent defendant from raisingmoney to pay the mort- gage, and that the assignment to plaintiff was made from malicious motives, is frivolous. Morris v. TutJiill, 72 N. Y. 575. If defendants on foreclosure of a junior mortgage answer so as unnecessarily to increase the costs, they may be charged with costs. Bar7iardv. Bruce, 21 How. 360. An admission of a bond and mortgage, as alleged in the complaint, is not an admission of the payment of insurance premiums by plaintiff as therein alleged. Fellows \. Midler, 38 Super. Ct. 137, Where a defendant in fore- closure pays the amount of the mortgage, but not the costs, and sets up such payment by answer, the answer cannot be stricken out as sham. Wetrnore v. Gale, 2 Week. Dig. 408. Where the due acknowledgment of a mortgage is admitted by the answer, the defendant cannot show that the mortgagor, a married woman, was not examined apart from her husband. Meeker v, Wright, 76 N. Y. 262. An answer which admits the taking of the mortgage as security for a debt admits the cause of action, and a denial of the remain- ing allegations is considered as a mere legal conclusion, and puts nothing in issue. Kay v. Churchill, 10 Abb. N. C. 83. Where the answer alleged a tender of specified amount, Jield, that, as it needed only a computation to ascertain whether it was sufificient, no trial was necessary. Eaton v. Wells, 82 N. Y. 576. An answer which merely denies the allegation of the complaint that defendants were in default of a sum alleged to have been due at a certain date as interest, states a conclusion of law merely, and is frivolous. Excelsior Savings Bank v. Campbell, 4 T. & C. 549, afifirmed, 62 N. Y. ^ij. Where the complaint alleged the assignment of the bond and mortgage, an answer not taking issue on this allegation, but aver- ring plaintiff was not the real party in interest, and that the bond and mortgage were still owned by an intermediate assignee, admits 366 FORECLOSURE. Art. 4. Answer and Defences. the sufficiency of the as.signment, and does not avail to allow defendant to rely on the objection that the mesne assignment proved did not purport to assign the bond. Sivcr v. Wheeler, 3 Week. Dig. 482. A defendant setting up that the mortgage is void for usury can- not, between plaintiff and a co-defendant, compel an amendment of the complaint for the purpose of setting forth the transaction, but may be protected by litigating with his co-defendant. Nei- man v. Dickson, 1 Abb. N. C. 307. If the holder of a mortgage has refused to receive interest, except upon condition that taxes that he had paid be reimbursed, and if the effect of so doing was to waive the tender of the money due on the mortgage, the defend- ants in foreclosure must set up these facts in their answer, and allege the tender. Sidcnbergv. Ely, 90 N. Y. 257. An answer tendered by a defendant in foreclosure can only be the basis of the determination of the rights of the defendants be- tween themselves, in a case where they have appeared and answered, in reference to a claim made against them by plaintiff, and as part of the adjustment of that claim, and where an issue is formed upon the facts involved in, and brought out on the litiga- tion and investigation of that claim. Lansing v. Hadsall, 26 Hun, 619. Where a person claiming a Hen prior to plaintiff is made a party, it is not necessary for him to set up his rights by answer. Payne v. Grant, 23 Hun, 134; Frost v. Koon, 30 N. Y. 428; Rath- bone V. Hooncy, 58 N. Y. 463 ; Leiois v. Smith, 9 N. Y. 502 ; Mer- cJiants Bank v. Thompson, 55 N. Y. 7; Emigrant Savings Bank, etc. V. Goldman, 75 N. Y. 127. But a prior mortgagee who is a defendant, and holding a junior lien, may answer in the action, and ask to have the prior mortgage paid out of the proceeds of the sale, before applying any portion of the proceeds to the pay- ment of plaintiff's mortgage. Metropolitan Trust Co. v. Tona- luanda, etc. R. R. T^. 43 Hun, 521 ; Doctor v. Smith, 16 Hun, 245. It is a matter of common practice to determine the priority in which different parcels shall be sold to pay the mortgage debt. ^V. Y. Life Lns. Co. v. Milnor, i Barb. Ch. 353, Fraud is a good defence when it is shown that it was practiced by the mortgagee, or his agents, upon the mortgagor, or when the mortgagee, or his assignees, at the time of taking the mortgage was aware of the fraud. Aiken v. Morris, 2 Barb. Ch. FORECLOSURE. 367 Art. 4. Answer and Defences. 140 ; Reedv. Latson, 15 Barb. 9; CJianiplin v. Laytin, 6 Paige, 189; Abbott V. Allen, 2 Johns. Ch. 519; Knickerbocker Life Ins. Co. v. Nelson, 13 Hun, 321. As to who may set up the defence of usury. Fanning V. DunJiani, 5 Johns. Ch. 122; WJieatonv. Voorhis, 53 How. 3-19; Bard v. Fort^ 3 Johns. Ch. 632; Post v. Dart, 8 Paige, 639; Books v. Avery, 4 N. Y. 225; Thompson v. Van Vechten, 27 N. Y. 568. One who has purchased land subject to a mortgage, the amount of which is made part of the consideration of the purchase, cannot set up usury whether he assumed payment of the mortgage or not. Hartley v. Harrison, 24 N. Y. 170; Sands V. Church, 6 N. Y. 347; Hardin v. Hyde, 40 Barb. 435; Morris V. Floyd, 5 Barb. 130; Freeman v. Auld, 44 N. Y. 50 ; Merchayits ExcJiange Bank v. Commercial, etc. Co. 49 N. Y. 635. A mortgagor may be estopped from setting up usury, by affidavit or certificate that the mortgage is vaHd. Real Estate Trust Co. v. Rader, 53 How. 231 ; Smyth v. Lombardo, 15 Hun, 415; Smyth V. Munro, 84 N. Y. 354. A defendant may set up any defence which shows the plaintiff not entitled to judgment of foreclosure as payment, or that time for payment has been extended, or want of consideration or usury. Prouty v. Price, 50 Barb. 344; Prouty V. Eaton, ^\ Barb. 409; Banks v. Walker, 2 Sandf. Ch. 344; Dodge V. Crandall, 30 N. Y. 294; Mutual Life Ins. Co. v. Bozven, 47 Barb. 618; Thompson v. Van Vechten, 27 N. Y. 568. It is not a defence that there are defects in title where the mortgage is for the purchase money, if there has been no eviction, and no fraud is alleged. Ed^aards v. Bodine, 26 \N end. 109; Tall- inadge v. Walles, 25 Wend. 107; Banks v. Walker, 3 Barb. Ch. 438; Burke V. Nichols, 2 Keyes, 670 ; Parker son v. Jaeobson, 13 Hun, 317; Parkinson v. Sherman, 74 N. Y. 88; Ryersonv. Willis, 81 N. Y. 277. He may, however, defend on that ground if kept out of possession, or surrenders to paramount title or after judg- ment of eviction. Withers v. Powers, 2 Sandf. Ch. 350 ; York v. Allen, 30 N. Y. 104; Coudry v. Coit, 44. N. Y. 382; Simers v. Saltus, 3 Den. 214; Dyett v. Pendleton, 8 Cow. 727. The mort- gagee may be estopped by his declarations from setting up an otherwise valid defence. Hoefflcr v. Westeott, 15 Hun, 243; John- son V. Parmely, 14 Hun, 398; Norris v. Wood, 14 Hun, 196. A defence to the foreclosure of a purchase-money mortgage on the part of the mortgagor, alleged to have existed at the time of its inception, can only arise where fraud has been practiced by 368 FORECLOSURE. Art. 4. Answer and Defences. the mortgagee in procuring its execution, or there is a failure of consideration. When, therefore, the purchaser is in undisturbed possession of the land, he cannot, in the absence of fraud, resist the foreclosure simply on the ground of defect of title. McConihe V. Fales, 107 N. Y. 404. Sub. 2. Counterclaim. A set-off may be allowed, but it must be of a debt due and payable at the commencement of the action. Holden v. G"?'/- ^^r/, 7 Paige, 208. But demands purchased after the commence- ment of the suit cannot be set off. Knapp v. BiirnJiam, 1 1 Paige, 330. When, simultaneously with giving of a conveyance and pur- chase-money mortgage and as part of the same transaction, a written agreement is made as to the erection of buildings thereon by the purchaser, and a release of certain portions from the lien of the purchase-money mortgage, damages sustained from the breach of any express or implied covenant in the agreement may be counterclaimed. Sanford v. Travers, 40 N. Y. 140. On foreclosure of a mortgage, given by principal with a joint bond to secure it, where a deficiency judgment is sought against both obligors, they may counterclaim a debt due the mort- gagor or principal debtor. Artcherv. Douglass, 5 Den. 509; Bray V. Ransoui, 12 N. Y. 466; Bathgate v. Haskin, 59 N. Y. 533. A defendant whose liability is not in question and who dis- claims all interest in the mortgaged premises, cannot demand a judgment against plaintiff on a contract. National Fire Ins. Co. v. McKay, 21 N. Y. 191. On foreclosure of a mortgage executed by defendant to plaintiff's testator to secure a payment agreed to be made in a specified time after such testator's death, a debt due defendant from the testator, in his lifetime, cannot be set ofif, but the funeral expenses paid by defendant can be. Patterson v. Patterson, 59 N. Y. 574. A purchaser of land subject to a mortgage, cannot set up as a counterclaim, or by way of recoupment, a fraud practiced on him by the mortgagor after the mortgage was given. Reed v. Latson, 15 Barb. 9. A defendant who is personally liable for the debt, or whose land is bound by the lien, may plead a counterclaim. Lath- rop V. Godfrey, 3 Hun, 739. If the mortgagee is guilty of a fraud on the mortgagor, the latter may counterclaim his damages resulting therefrom. Abbott v. Allen, 2 Johns. Ch. 519; Greene v. FORECLOSURE. 369 Art. 4. Answer and Defences. Tallman, 20 N. Y. 191 ; Ludington v. Slaiison, 38 Super. Ct. 81. As to what are proper counterclaims, McLanc v. Gccr, 3 Edw. Ch. 245; Bernheimcr v. Willis, 11 Hun, 16; Holdcn v. Gilbert, 7 Paige, 208. An allegation of usury and demand for cancellation of bond and mortgage, is not a counterclaim. Barthet v. Elias, 2 Abb. N. C. 364; Equitable Life Ins. Co. v. Cuyler, 12 Hun, 247, afifirmed, 75 N. Y. 511. And an allegation that a mortgage is in- valid for any reason does not call for a reply. Agate v. King, 17 Abb. 159; Caryl V. Williams, 7 Lans. 416; Bates v. Rosekrans^ 37 N. Y. 409; Vassear v. Livingston, 13 N. Y. 249. Where a prior mortgage was made to a defendant in the fore- closure, his claim to foreclose his mortgage is available as a counterclaim. Metropolitan Trust Co. v. Tonaivanda, etc. R. R. Co. 43 Hun, 521 ; s. c. 7 St. Rep. 90, 18 Abb. N. C. 368. In an action to foreclose a purchase-money mortgage, in which judgment for deficiency was demanded, breach of the covenant of seizin in a deed to defendant may be set up as a counterclaim. Merritt v. Gouley, 35 St. Rep. 277. It is said in the opinion in Keeler v. Keeler, 102 N. Y. page 30, which was an action of foreclosure, that the plaintiff had the right to give evidence on the trial, for the purpose of avoiding new matter set up as a defence, of any facts which might have been pleaded by way of reply, when that pleading was not used. Sub. 3. Tender as a Defence. Kortright v. Cady, 21 N. Y. 343, is authority for the rule that tender of the amount due upon a mortgage discharges the lien though made after the moneys became due and need not be kept good. This case has been criticized from time to time and kept within very narrow limits, but has, nevertheless, been followed up to this time. The rule with regard to the manner in which the tender must be made and the evidence is, however, held very strictly. It was said in the early case of Wood v. Hitchcock, 20 Wend. 49, that interlarding any other object would always defeat the effect of the act as a tender. It was held that the demand of a receipt would vitiate the tender in Ryder v. Toivnsend, 7 Dowl, & Ryl. and also 2 Phillips on Evidence, 7th ed. 134. In Rosevelt v. BulF s Head Bank, 45 Barb. 583, it is said that the plaintiff on tender was not bound to sign a satisfaction piece; that the money should be tendered irrespective of any other act. [Special Actions — 24.] 370 FORECLOSURE. Art. 4. Answer and Defences. In Tuthillv. Morris, 81 N. Y. 94, it is said, " in view of the seri- ous consequences resulting from the refusal of such a tender, the proof should be very clear that it was fairly made and delivered and intentionally refused by the mortgagee or some one duly authorized by him, and that sufficient opportunity was given to ascertain the amount due ; at all events, it should appear that a sum was absolutely and unconditionally tendered sufficient to cover the whole amount due. The burden of that proof is on the party alleging the tender." To the same effect, Day v. Strong, 29 Hun, 505, and in Harris V. Jex, 66 Barb. 232, it was held that the right to tender the money due so as to discharge the lien was personal to the mortgagor, and that an assignee of the mortgage was not in a position to avail himself of the rights given him in Kortriglit v. Cady. On the appeal, 55 N.Y. 421, Judge Andrews, in the opinion of the court, said : "We deem it unnecessary to consider whether there is such a distinction between the facts in this case and those which appear in Kortright v. Cady, as to call for the application of a different rule in respect to the legal effect of the tender made by the defendant there, that applied in that case." Harris v. Jex, 66 Barb. 232, supra, is cited with approval in Noyes v. Wyckoff, 30 Hun, 466, which was affirmed 1 14 N. Y. 204, without reference to this point. See, however, upon this point. Frost v. Yonkers Savings Bank, 70 N. Y. 553, which was assumed to intimate a different view from that held in Harris v. Jex. Where affirma- tive relief is asked by a defendant, such as the cancellation of the mortgage, the tender must be kept good as in other actions. Tiit- Jiill V.Morris, 81 N.Y. 94; Breiinich v. Wcsclnian, 100 N.Y. 609; Wcr7ier v. Tiich, 23 St. Rep. 683; S. C. 52 Hun, 259; Nelson v. Loder, 28 St. Rep. 635, are authority for this rule. In Halpin v. Phenix, 118 N. Y. 165, which was an action to compel the defendant to execute and deliver to the plaintiff a satisfaction of the mortgage, it was held that where there is no dispute as to the amount of a debt, a tender may always be restricted by such conditions, as by the terms of the contract, the debtor on payment has a right to insist upon, and to which the creditor has no right to object, that a mortgagor, therefore, has a right to attach as a condition of payment of the money secured, that the owner execute a satisfaction of the mortgage. A tender to be effectual for the purpose of stopping interest FORECLOSURE. 3/ Art. 4. Answer and Defences. and preventing costs must be kept good by the debtor and when- ever he seeks to make it the basis of affirmative reHef, it must be paid into court so that the creditor may get the money and that fact must be alleged in the pleading. Where, however, no objection is taken by the pleading, and the failure to allege pay- ment into court, the act maybe performed on the trial, but in the absence of any objection then taken, the presumption on appeal is that it was performed. In Nelson v. Loder, 132 N. Y. 288, Follett, Ch. J., speaking for the court, discusses the question of tender and holds, citing Kortright v. Cccdy, 21 N. Y. 343, and other authorities, that in case the whole amount secured by the mortgage is due, the ten- der of the sum unpaid by the owner of the mortgaged premises, extinguishes the lien of the mortgage although the tender is not kept good, but it does not discharge the promise or covenant to pay the debt for which the debtor remains liable. Further, that if a debtor wishes to extinguish his liability for subsequently accruing interest or demand some affirmative relief, he cannot retain the money subject to his own use, but must devote it to the specific purpose of paying the debt and puts it within the power of the creditor to receive it at any time ; he must keep his tender good ; a subsequent lienor's right to redeem a prior secu- rity is derived from the owner of the mortgaged premises, and he is in this respect in no better position than the owner, and his tender, if he wishes to stop interest or compel an assignment of the prior lien, must be as absolute and specific as that which the owner is required to make as a ground for affirmative relief or to stop the running of the interest. Sub. 4. Demurrer. Where plaintiff brought foreclosure individually, and as admin- istratrix, to foreclose a mortgage given by a person of whom she was also administratrix, and made herself a party defendant in that capacity, held, that the fact that she was named as defendant did not prejudice the other defendants and was not a valid ground of demurrer. Biirtis v. Burtis, 39 St. Rep. 637. A complaint in an action to foreclose a mortgage executed by a trustee, is not demurrable on the ground that the cestui que trust was not made a party. He is a proper but not ordinarily a necessary party. Harlem, etc. Association v. Quinn, 32 St. Rep. 909. 372 FORECLOSURE. Art. 4. Answer and Defences. Sub. 5. Relief Granted Defendants. Defendants who do not set up any equities against plaintiffs should not be allowed to litigate between themselves, before judg- ment, the question of their priorities of right in the fund, or their equities, but plaintiff should have the usual judgment. Swart v. Bement, 4 Abb. Ct. App. Dec. 253. Defendants cannot settle their rights as between themselves until after the entry of judg- ment unless those rights grow directly out of the claim made by the plaintiff, and consist in qualifying the rights of the plaintiff as against the defendants. Mcaman v. Dickso7i, i Abb. N. C. 307 ; Miller v. Case, Clarke's Ch. 395. If an issue is raised by one de- fendant against any other defendant, the answer must be duly served on the co-defendant to be available. Meigs v. Willis, 66 How. 466. No question of title adverse to the mortgagor can be litigated in an action to foreclose, and the only effect of a judg- ment therein is to vest in the purchaser the title of the mortgagor at the time of making the mortgage. Bowery Savings Bank v. Foster, 1 1 Week. Dig. 493 ; Dime Savings Bank v. Crook, 29 Hun, 671 ; Rathbone v. Hooney, 58 N. Y. 463; Merchants' Bank v. Thompson, 55 N. Y. 7; Meigs v. Willis, 66 How. 466; Emigrant, etc. Bank v. Goldman, 75 N. Y. 127; Emigrant, etc. Bank v. Clute, 33 Hun, 82 ; Corning v. Smith, 6 N. Y. 82 ; Lezvis v. Smith, 9 N. Y. 502; Baker v. Bnrton, 6'j Barb. 458; Lee v. Parker, 43 Barb. 611. The validity of a trust deed executed prior to the execution of the mortgage cannot be tried in foreclosure. Helck V. Reinheimer, 23 Week. Dig. 473. A mistake occurring by acci- dent, fraud or otherwise, must be corrected in an action on satis- factory proof being made. Gillespie v. Moon, 2 Johns. Ch. 585 ; Andrews v. Gillespie^ 47 N. Y. 487. And a defendant may have a covenant struck out of a deed binding him personally for the debt. Albany City Bank v. Burdick, 87 N. Y. 48. It is proper to determine in foreclosure a controversy between plaintiff and the grantee of the mortgagor, as to the right of the latter to remove an erection from the land, and if the right is established, the court may protect it in the judgment by ordering sale subject to the right of authorizing removal before sale. Brown v. Kceney Settlement Cheese Association, 59 N. Y. 242. A purchaser at a tax sale made subsequent to the mortgage may litigate the question as to the priority of his lien. Roosevelt Hospital v. Dowley, 57 How. 489. FORECLOSURE. 373 Art. 5. Matters of Practice. ARTICLE V. Matters of Practice. §§ 1628, 1630. Sub. I. Service personal and by publication. 2. Notice of no personal claim. 3. Guardian ad litem for infant defendant. 4. Miscellaneous rules and regulations. 5. No other action to be brought without leave of the court. §§ 1628, 1630. 6. Receiver, when appointed, powers and duties. 7. Costs. Sub. I. Service Personal and by Publication. If afifidavits upon which an order for service of the summons in an action for foreclosure by publication is sought, state facts tend- ing to show that the defendant had become and is a non-resident, the judge had jurisdiction to grant or refuse to make an order, and his determination that the defendant is a non-resident is conclu- sive. Wichman v. AscJipurwis, 14 Civ. Pro. R. 88. Where extrinsic proof is necessary to show parties as partners, it is proper to serve one absent from the State by publication, and the expense is properly allowable. Chevers v. Damon, 37 St. Rep. 904. The provisions of § 451 of the Code relating to unknown par- ties as to manner in which they may be designated and served, applies to all actions in which service of summons may be made by publication. Bergen v. Wyekoff, 84 N. Y. 659. And such publication bars the defendants even if they are infants. Wheeler V. Scully, 50 N. Y. 667. While the recitals in a judgment zx^ prima facie evidence of jurisdiction, Boswortk v. Vandezvalker, 53 N. Y. 597, yet an infant must be actually served with process, and the appointment and appearance of a guardian ad litem will not cure the defect and the infant will not be barred. Ingersoll v. Mangavi, 84 N. Y. 622. An afifidavit to obtain service by publication on unknown heirs, made by an attorney, is not enough to show that the names or residences of the parties in interest were unknown to the afifiant, since it does not show they were unknown to the plaintiff. It fails to state the source from which the attorney's information was derived. Piser v. Lockwood, 30 Hun, 6. 374 FORFXLOSURE. Art. T. Matters of Practice. A married woman may now appearand defend by her own attor- ney as though she were single. Janinski v. Heidelberg, 21 Hun, 439, and the rule laid down in the earlier authorities to the effect that service of a summons on the husband was good for both hus- band and wife where she had only an inchoate right of dower, Ferguson v. Smith, 2 Johns. Ch. 139; Leavitt v. Cruger, i Paige, 421 ; 3Iills V. Van Voorhis, 10 Abb. 152; Nagle v. Taggart, 4 Ahh. 144; Foote V. Lathrop, 53 Barb. 183 ; Eekerson v. Vollmer, 11 How. 42; Feitner v. Hoeger, 15 St. Rep. 377, so far as relates to the rule as it now stands, may be regarded as obsolete. See Kur- sheedt v. Union Dime Savings Inst, of New York, 118 N. Y. 358, and the ruling in Taggart v. Rogers, 49 Hun, 265, that the old chancery rule that a husband could enter an appearance for his wife without service being made upon her where the wife is not personally served in the action and judgment recovered, is void as to her, citing White v. Caulter, 59 N. Y. 659; Feitner v. Lewis, 119 N. Y. 131, reversing 55 Supr. 519, 16 St. Rep. 574; to the same effect, 15 St. Rep. 377, affirmed, 121 N. Y. 660, holds that where action to foreclose a mortgage was brought in 1838, and no service was made upon the wife, that under the practice in force at that time personal service upon the wife was not neces- sary, but service upon the husband was a good service on both, and this although she was at the time under age. Sub. 2. Notice of No Personal Claim. Under the provisions of § 423 of Code of Civil Procedure, where no personal claim is made against any defendant, a notice, setting forth the object of the action, a description of the property affected by it, and that no personal claim is made against him, subscribed by the plaintiff's attorney, may be served with the summons. If the person so served unreasonably defends the action, costs may be awarded against him. If, after being served with notice of no personal claim in foreclosure and stipulation that nothing in the judgment shall affect her claim to dower, she answers, neither party will be entitled to costs as against the other. Barker v. Burton. 67 Barb. 459. FORECLOSURE. 375 a Art. 5. Matters of Practice. Precedent for Notice of No Personal Claim. SUPREME COURT — Trial Desired in Ulster Countv. JOHN S. DUMONT agst. HENRY R. ENTROTT, etc. (Here follows summons, usual form.) To the above-named defendants except Henry B. Entrott, Joseph Hendricks and Sylvanus DeVoe: Take notice that the summons herewith served upon you in this action is issued upon a complaint praying for the foreclosure of a mortgage executed by Henry B. Entrott and wife, Joseph Hendricks and wife and Sylvanus DeVoe and wife, all of the town of Olive, county of Ulster and State of New York, to John S. Dumont of said town, on the 14th day of March, 1882, and recorded in the office of the clerk of the county of Ulster in Book of Mortgages No. 156, at page 347, on the i6th day of March, 1882, at 4:30 o'clock, p. m., to secure the payment of the sum of $2,000, with interest from the 14th day of March, 1882, upon the following described premises, namely: (here insert description) and a personal claim is not made against you or against any defendant except against the defendants Henry B. Entrott, Joseph Hendricks and Sylvanus DeVoe. KENYON & SHARPE, Plaintiff's Attorneys, Sub. 3. Guardian ad Litem for Infant Defendant. Where an infant has been served and no guardian appointed, the judgment is voidable tliough not absolutely void. Croghan V. Livingston, 17 N. Y. 218; Bloom v. Bur dick, i Hill, 130; Wright V. Miller,'^ N. Y. 9; Mc Murray v. Mc Murray, 66 N. Y. 175. The method of appointing a guardian is provided for by § 471 of the Code of Civil Procedure. Where an infant defendant in an action for foreclosure is served with process, but no guardian ad litem is appointed and judgment is taken by default, the judgment is not void but voidable. In such case, where judgment is obtained by fraud or collusion, an action may be maintained on the part of the infant to set it aside. McMurrayv. McMurray, 66 N. Y. 175. A purchaser at a fore- closure sale, in a case where service has been made on the guard- ian ad litem, but not on the infant, will not be compelled to pay his bid and accept a deed. Ingcrsoll v. Mangani, 24 Hun, 202, 376 FORECLOSURE. Art. 5. Matters of Practice. affirmed, 84 N. Y. 622. Where a guardian ad litejn had no notice of his appointment until after final judgment, he may then have leave to come in and answer; but not in case the plaintiff consents to strike out the name of the infant as a de- fendant. Farmers' Loan and Trust Co v. Erie Railway Co. 9 Abb. N. C. 264. If the infant is a non-resident, and does not appear, or is not made a party to the suit, the court has no juris- diction to appoint a guardian ad litem ; so held in a case where there was personal service on the mother of the infant who resided in New Jersey, and the mother was, upon her own application, appointed guardian ad litem. An appearance by one appointed guardian ad litem for an infant defendant, who has not been served with process, is not a voluntary appearance, which is equivalent to the personal service of a summons, higersoll v. Mangam, 84 N. Y. 622. As to general provisions of Code for appointment of guardian ad litem, for infant defendant, see §§ 468-477, inclusive, of Code of Civ. Pro. ; also Rules 49 and 50. An answer of an infant defendant need not be verified. See § 523- Answer by Guardian ad Litem. SUPREME COURT — Ulster County. THE ULSTER COUNTY SAVINGS INSTI- TUTION agst. GEORGE W. BASTEN and SARAH M. BASTEN, HIS Wife; EDGAR H. BASTEN, LOUIS B. BASTEN, JAMES OLIVER AND SAMUEL M. BASTEN. The defendant Samuel M. Basten, answering the complaint in the above-entitled action by his guardian ad litem, George V. Basten, says that he is a stranger to all and singular the matters in the com- plaint in this action set forth, and that he is an infant under the age of twenty-one years, and claims such interest in the premises as he is entitled to, and he submits his rights and interests in the matters in question in this action to the protection of the court. S. D. HOOD, Attorney for George V. Basten, guardian ad litem for infant defendant Samuel M. Basten. FORECLOSURE. 377 Art. 5. Matters of Practice. Sub. 4. Miscellaneous Rules and Regulations. A complaint in an action for foreclosure, when verified by the plaintiff's attorney, may be treated as an unverified complaint. Peyser v. McCormack, 7 Hun, 300. "Where any of the parties die before judgment it should be revived, and continued in the names of their personal representatives. Gerry v. Post, 13 How. 118. See Grant v. Griswold, 21 Hun, 509; S. C. 82 N. Y. 569. Where a mortgagor, who is personally liable for a deficiency, dies, his executor may be made party to a suit for a foreclosure, and a decree may be made that the deficiency be paid out of the assets in their hands in due course of administration. Glacius v. Fogel, 88 N. Y. 434. But the death of any of the parties subsequent to judgment will not affect the action. Harrison v. Simonds, 3 Edw. Ch. 394; Lynde v. O' Donne//, 21 How. 34; Hayes v. T/iomas, 56 N. Y. 521. There need be no amendment on account of assignment of decree. Laing v. Titus, 18 Abb. 338. On a substitution of plaintiffs, notice should be given to all the defend- ants, whether they have appeared or not. McLean v. Tompkins, 18 Abb. 24. A defendant may serve notice of appearance after judgment, and will then be entitled to notice of all subsequent proceedings. Martine v. Lowenstein, 6 Hun, 225, 68 N. Y. 456. The parties to a foreclosure suit are not entitled to trial by jury; it is in the discretion of the court whether issues of fact shall be passed on by a jury to inform the conscience of the court. Rar/zer v. Burton, Gy Barb. 458; Losee v. E//is, 13 Hun, 655; Knic/eer backer Life Ins. Co. v. Ne/son, 8 Hun, 21 ; Carro// v. Deime/, 95 N. Y. 252. A foreclosure suit may be commenced by service on defendants in any county in the State, or by publica- tion against non-residents. See Code of Civ. Pro. § 438 ; Bates V. Reyno/ds, 7 Bosw. 685 ; Spyer v. Fis/ier, 5 J. & S. 93 ; Porter v. Lord, 13 How. 254. If an answer merely alleges part payment, foreclosure for the balance may be decreed. //«// v. Z/^?//, 25 Hun, 277, An answer setting up a junior mortgage is not evidence of the existence of such a mortgage against defendants, who suffered the bill to be taken as confessed; or incumbrancers not made parties. Bcekman v. Gibbs, 8 Paige, 511. An offer of judgment may be made in an action of foreclosure, and such ofTcr will cut off the right to an extra allowance. Astor v. Pa/ac/te, 49 How. 231. In foreclosure 378 FORECLOSURE. Art. 5. Matters of Practice. for the interest, if the principal becomes due during the pendency of the action, the pleadings may be amended to conform to the proof. Sidenbiirg v. Ely, i Law Bull. 70. A supplemental com- plaint is proper in an action of foreclosure, where the original complaint shows a right to some relief for the purpose of setting out subsequent facts. Hasbrouck v. Sinister, 4 Barb. 285 ; Cand- ler w. Peftit, I Paige, 168; Bostwick v. Menck, 8 Abb. (N. S.) 169; Stihvell V. Van Epps, i Paige, 615; Malcolm v. Allen, 49 N. Y. 448. Upon trial in foreclosure defendant may be per- mitted to serve supplemental answer. Knickerbocker Life Ins. Co. V.Nelson, 78 N. Y. 137. But see Tliieme v. Bet /ton, 13 Week. Dig. 91. Plaintiff's proceedings are not to be stayed by an issue merely between co-defendants. N. V. Life Ins. Co. v. Devlin, 3 Law Bull. 99. Foreclosure of a subsequent mortgage cannot be stayed, though judgment has been obtained on prior ones. Daily V. King, 41 How. 22. In an action to have an assignment of a lease declared a mortgage, a judgment so declaring it, but order- ing the complaint dismissed within a certain time if redemption be not made, is not a foreclosure until the final order dismissing the complaint. Bolles v. Duff, 43 N. Y. 469. A judgment by default may be set aside as in other actions in case the defendant produces the proposed sworn answer, so that the court may see that he has merits on his petition, or affidavit states the nature of his defence and his belief in the truth of the matter constituting his defence, so far, at least, as to enable the court to see that injustice will probably be done if the order to take the bill as confessed be permitted to stand. Powers v. Trenor, 3 Hun, 3, afifirming 48 How. 500. See, also. Heat v. Wallis, 6 Paige, 371 ; IVinship v. Jewell, i Barb. Ch. 173 ; Goodhue v. Churchman, i Barb. Ch. 596. It is said foreclosure suits may be consolidated, but the motion therefor must be made before the causes are brought to trial. Eleventh Ward Savings Bank v. Hay, 55 How. 438. Co7itra, Beach v. Riiggles, 6 Abb. N, C. 69; Selkirk V. Wood, g Civ. Pro. R. 141. But where the foreclosure is against premises not the same, although against same parties, its consolidation will be refused. Kipp v. Delamater, 58 How. 183. Where, upon the trial, it appeared that one of the defend- ants was an infant at the time she signed the mortgage, the com- plaint as to such defendant will be dismissed ; but where she omitted to disaffirm the contract of the mortgage, and plaintiff FORECLOSURE. 379 Art. 5. Matters of Practice. proceeded in ignorance of the infancy till the trial, such infant defendant should not have costs against plaintiff. Irivin v. O'Connor, 15 Week. Dig. 124. If the answer presents what may be claimed to be a defence, the Special Term cannot order judg- ment. Stiiyvesant v. Browning, 33 Supr. Ct. 203. If an infant answers raising a material issue, it must be tried by the court or referred, though he fail to appear. Exchange Fire Ins. Co. v. Early, 54 How. 279; Jackson v. Rcon, 60 How. 103. A complaint in foreclosure prayed that if the proceeds were insufficient, an accounting might be had of the rents and profits by the then owner, who had purchased the premises subject to the mortgage and taxes, but had not assumed to pay them, and that he might be adjudged to pay any deficiency to the extent of the rents and profits received by him. None of the defendants answered or demurred. There being a deficiency, the referee, on the accounting, found that the owner had collected more than the taxes amounted to. On motion to confirm the report and for judgment, Jield, that the owner's failure to answer was not an admission that plaintiff was entitled to the relief demanded, but simply that he was entitled to such relief as the facts alleged entitled him to have. Argall v. Pitts, 78 N. Y. 239. A judg- ment may be opened, after foreclosure, to enable a defendant to protect himself against liability for a deficiency by pleading his discharge in bankruptcy. Mutual Life Ins. Co. v. Cameron, 1 Abb. N. C. 424. See Trustees v. Merriam, 59 How. 226. A recital in a judgment of foreclosure that affidavits were read and filed showing the service of the summons, means the service of a summons necessary for the commencement of the action against all the defendants. Boszvorth v. Vandczvalkcr, 53 N. Y. 597. A judgment for deficiency must be recovered in foreclosure to sus- tain an action to enforce payment of the deficiency from land devised by the mortgagor. Lockwood v. Faiucett, 17 Hun, 146, A person claiming dower, by a title paramount to the mort- gagee, cannot be brought into court in a foreclosure suit to set up the validity of her dower after judgment. Her right is the same as if she had not been made a party. Lewis v. Smith, 9 N. Y. 502; Merchants Bajik v. Thompson, 55 N. Y. 7. But, if the mortgage is given to secure the purchase money, the wife's dower is subject to the mortgage and is barred if she is made a party. So held in foreclosure by advertisement. Breckctt v. 380 FORECLOSURE. Art. 5. Matters of Practice. mI Baum, 50 N. Y. 278. The court has no power to enter a judg- ment dismissing the statutory lien of a judgment creditor who has not answered, and divide the surplus among others, especially when in the complaint no such relief was demanded. Rogers v. Ivers, 23 Hun, 424, citing Chautauqua Bank v. Risley, 19 N. Y. 375. A judgment of foreclosure and sale may be executed, not- withstanding the death of the mortgagor, by a sale of his interest. Revival is unnecessaiy. Hays v. Thomas, 50 N. Y. 521 ; Ly?ide V. O'Domiell, 12 Abb. 286; Harrison v. Simons, 3 Edw. 394. As to the impropriety of entering a judgment after death of mort- gagor nunc pro tunc, see Grant v. Griswold, 21 Hun, 509; appeal dismissed, 82 N. Y. 569. Neither does the death of the plaintiff after judgment and before sale make it necessary to stay pro- ceedings or revive. Lynde v. O'Donncll, 12 Abb. 286. Other- wise, when plaintiff dies before judgment. Gerry v. Post, 13 How. 118. Where the sole plaintiff dies after report of referee and before entry of judgment, a sale without revivor is a mere irregularity and will not defeat the title of the purchaser. Smith V. Joyce, II Civ. Pro. R. 257. In the absence of fraud or collusion on the part of the mort- gagee and his attorney, preventing the mortgagor from paying interest, their motives in foreclosing the mortgage are immaterial. Trenor v. Le Count, 84 Hun, 426, 32 Supp. 412, 65 St. Rep. 610. In an action brought by the holder of bonds of a railroad com- pany on behalf of himself and others to foreclose a mortgage given to secure the same, after a refusal of the trustees to sue the company, it tendered to plaintiff the amount of his unpaid cou- pons; held, the tender was not sufficient to arrest the action unless it was a tender of all the interest on the bonds, the holders of which had not agreed to postpone their claim or interest. Van Benthuysen v. Central New Eng. & Western R. R. Co. 45 St. Rep. 16, 17 Supp. 709. A trustee appointed pending an action of foreclosure, in place of the trustee holding the equity of redemption, who had resigned, cannot be added as a new party, but should be substituted in place of the former trustee. Grisivoldv. Caldwell, 14 Misc. 299, 25 Civ. Pro. R. 122, 70 St. Rep. 682, 35 Supp. 1057. Where ample notice was given to the owner of the fee before the commencement of the action that the mortgagees elected to foreclose if interest was not paid as provided in the interest clause, FORECLOSURE. 38 1 Art. 5. Matters of Practice. the action cannot be defeated by a tender of the interest due and costs subsequently made. Osborne v. Ketchain, 76 Hun, 325, 27 Supp. 694, 59 St. Rep. 83. An order denying a motion to settle issues and direct the trial thereof by a jury is discretionary. French v. Raw, 77 Hun, 380, 28 N. Y. Supp. 849, 60 St. Rep. 396. The seal upon a mortgage is only presumptive evidence of a sufificient consideration which may be rebutted, and, therefore, evidence of declarations at and before the execution of the mort- gage are admissible to show want of consideration and the pur- pose for which it was given. As against the personal representa- tive of a deceased mortgagee the declarations of the testator made while he was the owner and holder of the mortgage, are compe- tent in an action to foreclose. Bairdv. Baird, 81 Hun, 300, 30 Supp. 785. An order of the General Term reversing an order allowing an amendment to the complaint after trial, by setting up an omis- sion from the mortgage by mistake of land intended to be covered by it, is discretionary and not reviewable in the Court of Appeals. Sprague v. Cochran, 144 N. Y. 104, 38 N. E. Rep. 1000, 63 St. Rep. 63. A refusal by a trustee to allow a bondholder to foreclose by his own attorneys unless the trustee is indemnified for costs, is not such a refusal as makes it proper for the bondholder to bring the action ; nor does the failure of the trustee to bring suit for a long time after the default of itself give a bondholder such right, since foreclosure is usually a last resort in such case. Beebe v. Richmond Light, Heat and Power Co. 13 Misc. 737, 69 St. Rep. 230, 35 Supp. I. It is not necessary for plaintiff to allege or prove in the first instance that his mortgage was given for value, although it may be his duty to do so after proof of a prior agreement, still where no objection has been taken of the failure of such proof, it will not be considered on appeal. Oliphant v. Burns, 146 N. Y. 218, 66 St. Rep. 594. An attorney for a party has a right to act for him until final judgment and payments made to him upon interlocutory judg- ment in foreclosure are binding on his client. Mi//s v. Stuart, 88 Hun, 503, 34 Supp. 786, 68 St. Rep. 584. A bondholder's action to procure the re-sale of a railroad under 382 FORECLOSURE. Art. 5. Matters of Practice. foreclosure, and a bill of review of the suit in which a receiver was appointed, who paid out large sums to the prejudice of bond- holders, was sustained in Sf evens v. Union Trust Co. 33 St. Rep. 130, II Supp. 268. Where a defendant as part owner and holder of a subsequent mortgage made by another part owner after entry of judgment, moved for leave to pay off the mortgage in suit and compel an assignment of it to him, it was held that he was entitled to sub- rogation as against other part owners and creditors of a part owner who sought subrogation in order to effect an immediate sale. De Forrest v. Peck, 84 Hun, 299, 65 St. Rep. 611, 32 Supp. 413. The relief which defendants may have against each other in foreclosure must be based upon the facts involved in the allega- tions of plaintiff's claim and as part of its adjustment, and within those limits such relief, if demanded in the answers, may be granted. Binghamton Savings Bank v. BingJianiton Trust Co. 85 Hun, 75, 66 St. Rep. 40, 32 Supp. 657; citing Ostrander v. Hart, 130 N. Y. 406. The plaintiff is not obliged to produce the bond on the trial in order to make out 2l prima faeie case where its making, execution and delivery are admitted by the answer, and the defence set up is payment. Anderson v. Culver, 127 N. Y. 377, 38 St. Rep. 898. An injunction will not be granted at the suit of one having a subordinate interest, to restrain a mortgagee from foreclosing his mortgage on the ground that a sale of real estate or personal property of the debtor separately would produce less than a sale of all together or at the same time. Buffalo Chemical Works V. Bank of Commerce, 79 Hun, 93, 61 St. Rep. 143, 29 Supp. 663. In an action to foreclose a second mortgage, the prior mort- gagee was made a party, did not plead and her mortgage was directed to be first paid out of the proceeds, held that the com- plaint in an action for foreclosure brought by her pending the former one and before the decree was properly dismissed. Jacobie v. Mickle, 53 St. Rep. 620, 24 Supp. 87, citing Parkhurst v. Bcrdell, 1 10 N. Y. 386. Where plaintiff in a foreclosure suit made a prior lienor a party seeking relief against the prior lien and a sale was ordered sub- ject to the lien, held that allegations in the answers of other defendants unsupported by evidence, could not be accepted as FORECLOSURE. 383 Art. 5. Matters of Practice. proof, especially where the answers were not put in evidence, and the plaintiff not appealing, that the prior lienor had no ground for appeal. Qninlan v. Strattan, 128 N. Y. 659. The lien of a second mortgage held by a mortgagee as trustee is not cut off by the foreclosure of a prior mortgage where such mortgagee is only made a party to the action in his individual capacity and it is not made to appear that the trust represented by him is intended or understood to be affected. McGuckin v. Mi/bank, 83 Hun, 473, 31 Supp. 1049, ^5 ^t- Rep. 79. Where the name of a defendant appears in the title of the complaint but not in the body of it, and there is nothing to show his connection with the property or cause of action, the court has power on the trial to direct an amendment by inserting an alle- gation as to his interest. Schooiunakcr v. Blass, 88 Hun, 179, 34 Supp. 424, 68 St. Rep. 382. An action may be maintained to set aside an assignment of a mortgage and judgment of foreclosure where the same has been procured by fraud, and plaintiff had no notice of the action until after the sale. Baker v. Byrn, 89 Hun, 115, 35 Supp. 556, 69 St. Rep. 469. Where a grantee of mortgaged premises alleges as a defence to an action to foreclose a mortgage, that the assumption clause was fraudulently inserted in the deed without his knowledge or con- sent, parol evidence as to what was .said between the parties to the deed prior to its execution intending to show the actual agree- ment, is admissible. Vmi Alstync v. SinitJi, 82 Hun, 382, (S}^ St. Rep. 595, 31 Supp. 277. A loan of money secured by a mortgage on the real estate bought with it, the borrower and lender to share in the profits when closed out, held not as between themselves to make them partners so as to prevent a foreclosure of the mortgage. Smith v. Lennon, 37 St. Rep. 937, 14 Supp. 259; Same v. Same, ij St. Rep. 939, 14 Supp. 260. A motion to open a judgment of foreclosure to allow a defend- ant to answer, made after the lapse of seventeen years, is prop- erly denied on the ground of laches. Meyer v. Mal/oii, 85 Hun, 450, 32 Supp. 889, 66 St. Rep. 206. An omission to open a decree of foreclosure on the ground that the judgment-roll did not show that the former owner of the property, who conveyed as single, was in fact married, denied as 384 FORECLOSURE. Art. 5. Matters of Practice. frivolous, the motion papers not alleging he was married. Hol- land Trust Co. V. Hogan^ 44 St. Rep. 577, 17 Supp. 919. A judgment of foreclosure may be amended by including taxes paid by the mortgagee after the entry of judgment; but it seems the payment of insurance on the property cannot be included. Mutual Life Insurance Co. v. Newell, 78 Hun, 293, 60 St. Rep. 241, 28 Supp. 913. The neglect of a guardian ad litem to interpose a formal answer in an action to foreclose, is a mere irregularity which the court may cure at any time by permitting an answer to be filed nunc pro tutic, and its absence does not invalidate the judg- ment. Hopkins V. Frey, 64 Hun, 213, 46 St. Rep. 133, 18 Supp. 903- In an action to foreclose a mortgage where it appeared that a prior mortgage had been foreclosed in a suit to which the pres- ent plaintiff was not a party, all the necessary parties being before the court and the pleadings being sufficient, it was held that the action could be turned into one of redemption. Denton v. Ontario Co. National Bank, 44 St. Rep. 33, 18 Supp. 38. Where defendant was inadvertently made a party to an action of foreclosure and appeared, but not until after a motion had been made noticed to strike out his name as a party, but he received no notice of the motion, it was held that his appearance was regular and he was entitled to notice. Stephens v. Hall, 32 St. Rep. 453. But where a party acquired title after a decree of foreclosure and was not a party to the suit, he was held not to be entitled to notice of motions made therein. Wing v. De La Rionda, 25 St. Rep. 1005. A defendant who sets up the defence of cham- perty, fraud, intimidation, false representation and maintenance, is not thereby entitled as matter of right to trial by jury. Stephens V. Humphreys, 32 St. Rep. 211. Where one of several defendants demurred for misjoinder of causes of action, which demurrer was overruled with privilege to answer, and one of the other defendants did not avail himself of the privilege within the time specified, it was held error to enter judgment against him before the other defendants were in default. Fales v. Lawson, 21 St. Rep. 710. An order may be made after entry of a decree of foreclosure providing for carrying out the same after the death of the defend- FORECLOSURE. 385 Art. 5. Matters of Practice. ant mortgagor, without reviving an action against his heirs or representatives. Wing v. De La Rionda, 125 N. Y. 678. In Hurst v. Elliott, 52 Hun, 273 ; S. C. 23 St. Rep. 476, it is questioned whether a mortgagor who has sold his equity of redemption in the mortgaged premises without taking any indemnity against his Habihty upon his bond, can enjoin his vendee against waste. It is only where a bond is shown to have accompanied a mortgage and to be the only apparent evidence of the debt to which the mortgage is collateral, that it must be produced or its non-production accounted for on the trial. Where it appears that although the mortgage recited the giv- ing of a bond, no bond was in fact executed and the debt is shown by the statements contained in the mortgage, the non-production of a bond is not fatal to a judgment of foreclosure. Mtinoz v. Wilson, III N. Y. 295. Where a mortgagee is made a party and the complaint alleges that he has or claims some interest in the mortgaged premises which is subsequent and subject to the plaintiff's lien, it seems that he will on his own motion be stricken out as a party. Fer- ris v. Hard, 15 Civ. Pro. R. 171. Where a prior mortgagee is made a party and interposed an answer setting up the superiority of his lien and died pending the action, where the plaintiff filed a stipulation waiving all claim to priority over such defendant's mortgage and asking that he be allowed to proceed to judg- ment, it was held that such application should be granted, upon the ground that where an action is brought against several de- fendants and one of them was not properly a party, plaintiff may proceed against the other defendants. Ferris v. Hard, 15 Civ. Pro. R. 171. If a party who was a proper but not a necessary party dies or his interest devolves on another pending the action, the proceed- ings may go on without reviving the action or continuing them against the successor in interest. Ferris \. Hard, 17 St. Rep. 364- A judgment of foreclosure on lands situated partly in this and party in an adjoining State, is properly restricted to the sale of the lands in this State and may direct judgment for the deficiency without waiting the result of the foreclosure in the other State. Clark V. Simmons, 55 Hun, 175; s. c. 28 St. Rep. 738, 8 N. Y. Supp. 74. [Special Actions — 25] 386 FORECLOSURE. Art. 5. Matters of Practice. Two causes of action to foreclose two mortgages upon the same real estate, both of which are held by one party and past due, but which were not given at the same time, nor by the same parties, and which were accompanied by bonds executed by different per- sons, may properly be joined in one complaint, where it is alleged that all the defendants have, or claim to have, some interest in or lien upon the mortgaged premises subsequent to the lien of the mortgages therein described, and that notwithstanding that the persons against whom a deficiency judgment was sought on differ- ent causes of action, were not the same. Morrisscy v. Leddy, 1 1 Civ. Pro. R. 438. Action to foreclose for simple contract debt which mortgage was given to secure, is not barred in six years, but no judgment can be had for deficiency. Hurlhut v. Clark, 33 St. Rep. 354. When a vendee in an unsealed instrument for the sale of real estate continues in possession, claiming under an executory con- tract, an action to foreclose the contract is not barred by the lapse of six years between the date of the last judgment and the date of the commencement of the action. Piatt v. \Vtllson, 23 St. Rep. 879. As to the effect of possession on mortgage to boim fide mort- gagor, see Bassett v. Wood, 29 St. Reo 901 ; PJielan v. Brady, 119 N. Y. 587. In foreclosing a lost bond and mortgage, it is unnecessary to exact from plaintiffs a bond to indemnify the mortgagor from loss or damage, since he may safely pay the mortgage without the production of the lost instrument, if he has had no notice or knowledge of any assignment. In an action to foreclose a mort- gage where a part of the lands covered by it are situated in an- other State, the court in decreeing foreclosure may require the mortgagor to execute a conveyance to the purchaser. Union Trust Co. V. Oi justed, 102 N. Y. 729. Where, on the foreclosure of a mortgage given to secure several notes, the plaintiff entered a judgment by default, directing the order in which the notes should be paid out of the proceeds, the provision was stricken out on motion of the mortgagor and the proceeds directed to be applied /re? rata upon the notes. Orleans Co. Nat. Bank v. Moore, 112 N. Y. 543. Where the answer of an infant raises a material issue, a motion for judgment, based solely on an affidavit of regularity under the FORECLOSURE. 387 Art. 5. Matters of Practice. rule must be denied. Jackson v. Reon, 60 How. 103. Where the answer was insufficient, and no evidence was given, and the court ordered judgment upon the pleadings when the case was called, held, that no findings of fact were required. Eaton v. Wells, 22 Hun, 123, affirmed, 82 N. Y. 576. One who a.ssigns a mortgage as collateral security for his own debt, and after default in his debt is made a defendant in an action to foreclose the mortgage, must set up his equity if he would preserve it. If he does not, the usual judgment of foreclosure bars him, and if the premises sell to plaintiff for less than enough to pay the debt as security for which the mortgage is held as collateral, the assignor cannot redeem. Bloomer v. Sturges, 58 N. Y. 168. A judgment of foreclosure and sale in an action to foreclose a first mortgage is not before sale a bar to an action to foreclose a junior mortgage, although the junior mortgagee was made a party to the first action. Bachcv. Purcell, 6 Hun, 518. See Sal- mon V. Allen, II Hun, 29. In 1872 defendant gave plaintiff's testator a bond and mortgage, and saw them in his possession just before his death in 1874. After taking possession of testa- tor's papers plaintiff could not find and has never seen the bond and mortgage ; no assignment is on record ; defendant is ready to pay. Held, plaintiff was bound to give defendant a bond of indemnity before judgment for foreclosure and sale. Stoddard V. Gailor, 12 Week. Dig. 244. A creditor's lien, obtained between the filing of the lis pendens and the filing of the complaint, is not affected by an order of the court directing the filing of the com- plaint nune pro tune as of the date of the filing the lis pendens where the creditor is not a party to the action and has no oppor- tunity to be heard. Weeks v. Tonies, 16 Hun, 349, affirmed, 'J^ N. Y. 601. In an action to foreclose a mortgage given by one of the defend- ants, in which action another defendant claimed possession by a paramount title, held, that since the plaintiffs as mortgagees could not maintain ejectment under § 1494, and since, as between these defendants, the right to the possession of the premises would not be settled in that action but must be tried by a jury, the complaint should be dismissed as to the defendant setting up a paramount title. Meigs v. Willis, 66 How. 466. A mortgagor having before suit tendered the full amount then due and brought the same into court, the lien of the mortgage is extinguished to 388 FORECLOSURE. Art. 5. Matters of Practice. that extent, and an action for foreclosure cannot be maintained by reason of an installment subsequently falling due. Gree7i v. Fry, 93 N. Y. 353. Where a defendant in foreclosure having an interest, which is alleged in the complaint to be subsequent to the mortgage, sets up in her answer facts tending to establish a paramount right of dower, and introduces evidence on the trial tending to support so much of the claim, the judgment should either dismiss so much of the action, as to such defendant, as relates to the interest claimed by her to be paramount to the mortgage, or else the interest should be excepted from the opera- tion of the judgment by a proper statement. Lanier v. Sjuith, 37 Hun, 529. The question as to whether the mortgagor was a purchaser in good faith under the Recording Act, and, therefore, entitled to priority over an earlier deed, which has been subse- quently recorded, cannot be raised in an action to foreclose. Kcelcr v. McNeirncy, 6 Civ. Pro. R. 363. In an action to foreclose a mortgage upon lands standing in the name of a wife to secure obligations of a specified amount from the husband, a prior judgment in an action by a receiver in sup- plementary proceedings, which has the effect of impeaching the title of the wife on the ground of fraud, does not authorize the court, in the foreclosure action, to increase the amount secured by the mortgage, and direct a sale and payment of the larger sum out of the proceeds. Niagara County National Bank v. Hooper, 2 St. Rep. 288. Where a court in this State has jurisdiction over a cause of action and the parties, it may decree foreclosure of a mortgage, although part of the premises covered by it are in another State ; and as the judgment may not be capable of exe- cution as against that portion of the property, may require the mortgagor to execute a conveyance to the purchaser, and where this is not done in the original judgment, the court has power, after sale, to amend the judgment by inserting therein such a provision. Union Trust Co. v. Olmstead, 102 N. Y. 729. The fact that by the terms of a lease the lessor had the right to insist upon a forfeiture, is no defence to an action to foreclose a mort- gage on the interest of the lessee therein against the latter's assignee. Kribbs v. Alvord, 9 St. Rep. 617. Subsequent incumbrancers made parties under the usual alle- gations must assert their claims or be foreclosed. Benjamin v. Elmira, etc. R. R. Co. 49 Barb. 441. If one holding a subsequent I FORECLOSURE. 389 Art. 5. Matters of Practice. mortgage is made a defendant, he may answer and claim to have prior mortgages held by him paid from the proceeds of the sale before paying plaintiff's mortgage. Doctor v. Smith, 16 Hun, 245. In foreclosure of a subsequent mortgage, holder of a prior mortgage cannot be compelled to litigate a controversy between himself and another defendant. Fink v. Allen, 36 Supr. Ct. 350- Foreclosure may be had for interest, although less than $50 is due. House v. Eiscnlord, 17 Week. Dig. 203. Acceptance of the interest after default is a waiver of the interest clause. Lawson V. Barron, 18 Hun, 414. Where the holder of a junior incum- brance tenders the amount of a prior incumbrance and demands transfer, it does not release the lien of the prior incumbrance, but merely puts the holder in a position to compel a transfer. Frost V. Yonkers Savings Bank, 70 N. Y. 553; see Dry v. Strong, 17 Week. Dig. 328; Bloomingdalc v. Barnard, 7 Hun, 459; McLean V. Thompson, 18 Abb. 24. A junior mortgagee, who is a party to a foreclosure, may, on motion before judgment, and on tender of payment, have an order for assignment to him of the senior mortgage, which is being foreclosed. Twombly v. Cassidy, 82 N. Y. 155. Where a mort- gagor, having sold the property to one who has assumed the mortgage, requests the mortgagee, after the mortgage is due, to foreclose, lest the property should become insuf^cient, the mort- gagee is bound to do so, or the mortgagor will be discharged from liability on his bond. Russell v. Weinberg, 4 Abb. N. C. 139. So as to owner of mortgage who transfers it with guaranty. North- ern Insurance Co. v. Wright, 13 Hun, 166. See Loomis v. Bul- heimer, 5 Abb. N. C. 263. Where the condition is, that on failure of the mortgagor to pay taxes, the mortgagee may do so, the mort- gagee must actually pay the taxes to give him the right to fore- close and collect them. Williams v. Tozvnsend, 31 N. Y. 411. The court cannot release against the provision that, by reason of default in interest, the principal becomes due. Noyes v. Clark, 7 Paige, 179; Ferris v. Ferris, 28 Barb. 29; Benfiett v- Stevenson, 53 N. Y. 508; O' Conor v. Shipman, 48 How. 126. See Asendorf v. Meyer 8 Daly, 278 ; Dzvight v. Webster, 32 Barb. 47 ; Thurston v. Marsh 14 How. 572. Money paid by the mortgagee to redeem the premises from a tax sale becomes part of the mort- gage debt, which may be enforced by foreclosure. Kortright v. Cady, 23 Barb. 490; Brevoort v. Randolph, 7 How. 358; Burr v. 390 FORECLOSURE. Art. 5. Matters of Practice. Vccdcr, 3 Wend. 412 ; Eagle Fire Ins. Co. v. Pell, 2 Edw. Ch. 631 ; SidenburgiL v. Ely, 90 N. Y. 257; below, 11 Abb. N. C. 354. When, although, as between the life tenant and the remainderman it is the duty of the former to pay the taxes, still the requisites be- tween them cannot destroy the right of the mortgagee to pay taxes and add the amount to the mortgage. Rapdye v. Pritiee, 4 Hill, 1 19; Silver Lake Bank v. NortJi, 4 Johns. Ch. 370 ; Faure v. Winans, i Hopk. 283. If a mortgagee pays an assessment at any time previous to the expiration of the time for redemption, he acquires a lien therefor, as against the mortgagor. Brevoort v. Randolph, 7 How. 398. But w^here the bond and mortgage con- tain no covenant to pay taxes and assessments, the mortgagor cannot, on foreclosure, be held for a deficiency arising from non- %\ payment of taxes and assessments accruing after a sale by him of the premises. Marshall v. Davis, 16 Hun, 606; s. c. 78 N. Y. 414. Where the owner of a bond and mortgage assigned them as security for a debt less than their full amount, and the assignee foreclosed, claiming only the amount due him, and obtains judg- ment of sale, and the owner subsequently paid the amount due the assignee, the judgment is not a bar to an action of foreclosure by the owner. After payment of the assignee's lien the mortgage is restored to the owner. O' Dougherty v. Remington Paper Co. 81 N. Y. 496. If the answer in foreclosure raises an issue against plaintiff the court cannot proceed summarily under the rule and determine whether the issue be material. Stiiyvesant v. Broivn- ing, 33 Supr. Ct. 203. Sub. 5. No other Action to be Brought Without Leave cf THE Court. § 1628, 1630. § 1628. Other actions for mortgage debt, when prohibited. While an action to foreclose a mortgage upon real property is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt, without leave of the court in which the former action was brought. ^ 1630. If judgment rendered therein, execution must be returned. Where final judgment for the plaintiff has been rendered, in an action to re- cover any part of the mortgage debt, an action shall not be commenced or main- tained to foreclose the mortgage, unless an execution against the property of the defendant has been issued, upon the judgment, to the sheriff of the county where he resides, if he resides within the State, or, if he resides without the State, to the sheriff of the county where the judgment-roll is filed; and has been returned wholly or partly unsatisfied. I FORECLOSURE. 39I Art. 5. Matters of Practice. The provision of § 1628 that " while an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action may be commenced or main- tained to recover any part of the mortgage debt without leave of the court," does not apply to a case where the action for fore- closure was brought in a foreign jurisdiction. New York Life Ins. Co. V. Aitkin, 125 N. Y. 660, 36 St. Rep. 8. Section 1628 does not prevent an action to recover a deficiency based on an agreement made after foreclosure, and such action can be maintained without leave of the court. FcrnscJiild v. Yuengling Brezving Co., 18 Misc. 49, reversing 16 Misc. 27S. On application for leave to sue on the bond made within twenty years from its date, the premises having been sold on foreclosure of prior mortgages and judgment entered for foreclosure upon a mortgage accompanying the bond, it was held that leave to sue should be granted notwithstanding an alleged agreement that defendant vv^as not to be personally liable, as the Statute of Limi- tations had not run against the bond ; the delay in making the application did not constitute laches. /// tlic Matter of Applica- tion of Howe, 41 St. Rep. 877. A party is not entitled as of right to both remedies at the same time, that is to foreclose a mortgage and an action on the bond, and where plaintiff fails to establish the validity of the mortgage he is not entitled to recover on the bond sought to be secured by the mortgage although the execution of the bond is averred in the complaint. Dudley v. The Congregation of the Third Order of St. Francis, 138 N. Y. 451. Section 1628 shows an intention on the part of the Legislature to place a restriction upon holders of bonds secured by a mort- gage which is in process of foreclosure, and unless cogent reason is presented for the granting of an order of the court under such section, granting leave to a bondholder to commence an action on his bonds during the pendency of an action brought to fore- close the mortgage securing the same, an application for such order should be denied. Matter of Moore, 'ii Hun, 389, 63 St. Rep. 380, 31 Supp. no. The provisions of the Code were intended to control the remedy in such cases (citing § 1628) within the territorial limits of the State, and have no extra-territorial force. Mutual Life Ins. Co. V. Smith, 7 St. Rep. 22. The mortgagee must exhaust 392 FORECLOSURE. Art. 5. Matters of Practice. his remedy in his action of foreclosure before he can be allowed his suit at law, after he has brought such an action. Nichols v. SmitJi, 42 Barb. 381. The provision contained in § 1628 applies only to the holder of the mortgage ; it does not apply to an action by a mortgagor, who, before foreclosure, has conveyed to a grantee, who assumed the mortgage, in which action the grantor sues the grantee for the amount of the deficiency he has been held to pay. Comstock v. Drohaji, 71 N. Y. 9; Campbell v. Smith, 71 N. Y. 26. Leave to prosecute both remedies is only given in extraordinary cases. Engle v. Underhill, 3 Edw. Ch. 249. Such leave was properly granted where mistake or inadvertance was shown. KaJte v. Prentice, 13 Week. Dig. 361. Where the second mortgagee was not a party to the foreclosure, a second foreclosure was allowed to be brought by the purchaser under the sale, and by the holder of a mortgage made by such purchaser. Frankly n v. Hayward, 61 How. 43. A complaint in an action against a person who has assumed payment of a bond and mort- gage, for deficiency after judgment, is not demurrable upon the ground that leave to sue was obtained after the commencement of the action, such leave being without prejudice to proceedings already had. Earl v. David, 20 Hun, 527, affirmed, 86 N. Y. 634. Where leave of the court is necessary, a legal or equitable defence will not be allowed to defeat the application unless it is substantially free from controversy. If there is a controversy, it must be upon the trial of the action. In re Hallenbarton, i Law Bull. 12. An application during or after foreclosure for leave to sue persons not made parties, should be denied if the course of the creditor, in delaying the enforcement of the mortgage, ren- ders the enforcement of personal liability inequitable. Application refused for leave to sue the personal representatives and next of kin of a deceased grantor, who were not parties to the foreclosure. Matter of Collins, 17 Hun, 289. Leave to bring suit for a defi- ciency may be granted nimc pro tunc, upon such terms as are equitable, where the plaintiff has sued without first obtaining leave. Earl v. David, 20 Hun, 527, 86 N. Y. 634; McKenan v. Robinson, 20 Hun, 289, 84 N. Y. 105. If. in a suit against the mortgagor and the executor of a grantee of a portion of the premises, no judgment for a deficiency is claimed against the latter, a separate action will not lie against him therefor without special leave of the court. Schoficld v. Doscher, lO Hun, 582. 72 FORECLOSURE. 393 Art. 5. Matters of Practice. N. Y. 491. An action upon guaranty of the mortgage is within the provision, and, in the absence of authority from the court, the action is not maintainable. Kernan v. Frazier, 23 Alb. L. Jour. 255. The court may, in its discretion, grant or refuse leave to bring an action at law to recover a deficiency arising on a sale in a judgment of foreclosure, in which no provision was made as to a deficiency. Where the mortgagee has voluntarily refrained from asking a judgment for a deficiency, some satisfac- tory reason should be given for permitting him to bring a sepa- rate action. Equitable Life Assur. Society v. Stevens, 63 N. Y. 341. It is proper to allow suit to be brought against one who was a non-resident at time of foreclosure. Bartlett v. McNeil, 60 N. Y. 53. Permission to sue should be alleged or at least proved, Schoficld V. Doscher, 72 N. Y. 491. Leave of the court is not necessary where the foreclosure is by advertisement. Bush v. Robbins, 23 Week. Dig. 405. The complaint should contain a distinct averment, in the terms of the statute, that no proceedings have been had at law for the recovery of the debt, or any part thereof; or, if such proceedings have been instituted, what they were and against whom. Pat- terson V. Powers, 4 Paige, 549. Where the complaint stated that no proceedings had been had at law to recover the amount due on the bond and mortgage, and defendants pleaded a judgment which plaintiff held against them as being no part of the debt secured by the bond and mortgage, and the testimony sustained the plea; held, a fatal objection, but plaintiff allowed to amend if he had exhausted his remedy at law. Lovett v, German Reformed Church, 12 Barb. 67. If the complaint shows that the plaintiff has obtained a judg- ment for the debt, but does not show that he has exhausted his remedy upon it, the defendant may demur to the complaint; or, if the fact does not appear upon the face of the complaint, he may raise his objection by answer. North River Bank v. Rogers, 8 Paige, 648; Shufclt v. Shufelt, 9 Paige, 137; Lovett v. German Reformed Church, 12 Barb. 6j. The provision applies not only to proceedings against the original mortgagor, but applies where judgment has been obtained upon a security given by a third party. Patterson v. Powers, 4 Paige, 549. After a final judgment in a foreclosure action an ex parte order granting leave to the mortgagee to sue, to secure payment of a 394 FORECLOSURE. Art. 5. Matters of Practice. deficiency arising upon the sale out of the funds belonging to the estate of the mortgagor, and entered as of a prior date to the commencement of the action, should be set aside. U. S. Life Ins. Co. V. Poillon, 25 St. Rep. 534. On sale in partition, part of the proceeds was deposited to meet decedent's debts ; held, that an action to apply the fund to the payment of a deficiency judgment in mortgage foreclosure could not be broueht without leave of the court in which the foreclos- ure was brought. In such an action the complaint must allege that such leave has been obtained. United States Life Ins. Co. v. Gage, 3 Supp. 398; Haiiselt v, Fine, 18 Abb. N. C. 142. The provision of § 1628 of the Code of Civil Procedure that il while an action to foreclose a mortgage upon real property is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought, does not prohibit a junior mortgagee who has filed a notice of claim to surplus moneys arising upon foreclosure of a prior mortgage, and is a party to proceedings for the distribution of such surplus, from bringing, without leave of court, an action to recover the debt secured by his mortgage. Wyckoffv. Devlin, 12 Daly, 144. Section 1628 has reference to the original debt the mortgage was given to secure and does not require leave to sue on a judg- ment for deficiency. ScJmltz v. Mead, 29 St. Rep. 203. The section has reference solely to a foreclosure conducted in this State and the leave must be obtained in this State. New York Life Ins. Co. v. Aitkin, 36 St. Rep. 8. An application for leave to bring action against a person's heirs to enforce a deficiency judgment recovered against his estate, is one which rests in the sound discretion of the court ; and where it would be inequitable to allow the enforcement of the judg- ment under all the circumstances of the case as they existed at the time of the application, the court should deny the motion. U. S. Life Ins. Co. v. Poillon, 27 St. Rep. 899, followed Walton v. Grand Belt Co. 1 1 Supp. 1 10. The provision of § 1630 applies to a judgment by confession. A sale and judgment which in that section would prevent an action to foreclose a mortgage must have been obtained on account of the mortgage debt or some part thereof ; it need not FORECLOSURE. 395 Art. 5. Matters of Practice. be recovered on the bond and mortgage or against the mortgagor. Guilford v. Crandall, 69 Hun, 414, 52 St. Rep. 633. Sub. 6. Receiver, When Appointed, Powers and Duties. In order to justify the appointment of a receiver of mortgaged premises, there must be evidence of the insufificiency of the prop- erty to satisfy the mortgage, and in the absence of such evidence the court is not justified in taking the property out of the posses- sion of the mortgagor pending the action. An affidavit by the attorney of the pbJntiiT to the effect that he is informed by plaintiff that he is extremely doubtful whether the premises would sell for enough to pay the amount due on the mortgage, is not sufficient. Sickles V. Canary, 8 App. Div. 308. A general equitable principle entitles a mortgagee to the appointment of a receiver pending his action of foreclosure, so far as to preserve the rents and profits of the property to meet any deficiency upon the sale; but, in the ab- sence of a clause in the mortgage pledging the rents and profits as security for the mortgage debt, the mortgagor is entitled to them up to the time of the .sale in foreclosure, and his right can only be defeated by showing, with reasonable certainty, that the mortgaged property is an inadequate security for the payment of the mort- gage debt. Where the question as to the appointment of a receiver of the rents and profits of mortgaged premises, pending an action of foreclosure, arises between lienors only, the moving par':y must show a superior equity. Where a party omits to move for or fails to secure the appointment of a receiver pending the action, he loses all title to the rents and profits which accrue before the sale, even though the sum realized upon the sale is insufficient to satisfy his judgment. Ross v. Vcrnan, 6 App. Div. 246. A receiver in foreclosure appointed to collect the rents, issues and profits, is appointed where it does not seem prudent to the court that the defendant should be allowed to collect and retain them, and it is his duty to take charge of the property pending the litigation, preserve it from waste and destruction, and receive the rents and profits. Chautauqii Co. Batik v. White, 6 Barb. 589; Green v. Bostwick, i Sandf. Ch. 185. He is to pro- tect and care for the property entrusted to him and his appoint- ment is in behalf of both parties to the action. Hoivell v. Ripley, 10 Paige, 43. The object of his appointment is to give a priority of lien on the rents and profits of the premises so that they may 396 FORECLOSURE. Art. 5. Matters of Practice. be applied to payment of plaintiff's claim. Gillett v. Moody, 3 N, Y. 479; Porter v. Williams, 9 N. Y. 142. And a plaintiff will be entitled to a receiver where it is probable that the premises will not on a sale, bring a sum sufificient to pay the debt and costs of the suit, and that no responsible person is liable for the de- ficiency. Sea Fire Ins. Co. v. Stebbins, 8 Paige, 565 ; Astor v. Turner, 2 Barb. 444; S. C. 3 How. 225. It is his duty to act with a view to the rights of all parties interested and to pro- tect the property to the best of his ability, hidings v. Bruen, 4 Sandf. Ch. 417; Lottimer v. Lord, 4 E. D. Smith, 183. Re- ceivers in foreclosure are appointed with great caution and only in clear cases. Warner v. Gouverncur, i Barb. 36 ; SJiotwell v. Smith, 3 Edw. Ch. 588; Jenkins y. Hinman, 5 Paige Ch. 309. The receiver is an officer of the court appointed on behalf of all who may establish an interest in the property; the property in his hands is in the custody of the law. Iddings v. Bruen, 4 Sandf. 417; Booth v. Clark, 58 U. S. 323; Lottimer v. Lord, 4 E. D. Smith, 183. He has no powers except those conferred upon him by the order appointing him. Rider v. Vrooman, 12 Hun, 299; Verpla7ick v. Mercantile Trust Co. 2 Paige, 438; Matter of Eagle Iron Works, 8 Paige, 385. A receiver of rents and profits may be appointed pendeiite lite when the mortgage is insufficient, and the party personally liable is insolvent, or when it is provided by the deed that the mort- gagee shall have the rents and profits after default. Jones on Mortgages, vol. 2, § 15 16; Shotwell v. Smith, 3 Edw. Ch. 588; Warner V. Gouverneur, i Barb. Ch. 36; Clason v. Corley, 5 Sandf. Ch. 447; Bank of OgdensburgJi v. Arnold, 5 Paige, 38; Astor v. Turner, 1 1 Paige, 436 ; Sea Ins. Co. v. Stebbins, 8 Paige, 566 ; Hozuell V. Ripley, 10 Paige, 43 ; Frc ling] luy sen v. Colden, 4 Paige, 104; Syracuse City Bank v. Tallman, 31 Barb. 201; Mitchell v. Bar t let t, 51 N. Y. 447; Smith v. Tiffany, 13 Hun, 673; Clark v. Binninger, 39 How. 363; Miller v. Bowles, 2 T. & C. 568; Rider V. Bagley, 84 N. Y. 461. If no proceedings are taken for the appointment of a receiver, the mortgagor's right to the rents con- tinues until after foreclosure. Howell v. Ripley, 10 Paige, 43 ; Lofsky V. Majer, 3 Sandf. Ch. 69; Mitchell v. Bartlett, 51 N. Y. 447; Argall v. Pitts, 78 N. Y. 239. The power to appoint a receiver of the rents and profits of mortgaged property was in the Court of Chancery before the adoption of the Code of Procedure. FORECLOSURE. 397 Art. 5. Matters of Practice. It was continued by that Code, and is not abrogated by the Code of Civil Procedure, § 713, defining cases in which receivers may be appointed, but, on the contrary, is reaffirmed by § 4, de- claring that " each of the courts therein named shall continue to exercise the jurisdiction and powers now vested in it — except as otherwise prescribed." Hollenbeck v. Donncll, 94 N. Y. 342. The appointment of a receiver is not a matter of strict legal right, but in the discretion of the court, and will not be exercised if the property is sufficient to pay the mortgage debt, or the mort- gagor is responsible, and the burden of proof as to those matters is on the mortgagee. Syracuse Bank v. Tallman, 31 Barb. 201 ; Shotwell V. Smith, 3 Edw. Ch. 588; Jenkins w. Hinma?i, 5 Paige, 309; Burlingham v. Parce, 12 Hun, 144; Rider v. Bagley, 84 N. Y. 461 ; Frelinghuyscn v. Colde?i, 4 Paige, 204. A receiver will not be appointed ordinarily as against a mortgagee in possession. Quin V. Brit tain, 3 Edw. 314; Patten v. Accessory Trust Co. 4 Abb. 237; Bolles v. Duff, 35 How. 481 ; Sea Ins, Co. v. Stebbins, 8 Paige, 565 ; N. V. Life Ins. Co. v. Glass, 50 How. 88. There must have been default as to some portion of the mortgage debt before a receiver will be appointed and suit brought to foreclose. Howell V. Ripley, 10 Paige, 43; Quincy v. Cheesernan, 4 Sandf. Ch. 405; Astor V. Turner, 11 Paige, 436; Lofsky v. Majer, 3 Sandf. Ch. 69; Bank of Ogdensburgh v. Arnold, 5 Paige, 38. And then a receiver of only a parcel will be appointed if that will protect the plaintiff. Hollenbeck v. Donnell, 94 N. Y. 342. A receiver in foreclosure is not liable for work done by an adjoining owner engaged in excavating to make the wall of the mortgaged property safe. Wyckoff v. Scofield, 103 N. Y. 630. The receiver appointed at the instance of a prior incumbrancer is entitled to receive the rents and profits until the prior mortgagee takes pos- session or has a receiver appointed. Post v. Dorr, 4 Edw. 412; Washington Life Ins. Co. v. Fleischauer, 10 Hun, 117; Howell v. Ripley, 10 Paige, 43. The party appointing a receiver obtains a lien on the rents and profits. Astor v. Turner, 11 Paige, 436; Ranny v. Peyser, 83 N. Y. i. The mortgagee can only be entitled to the rents and profits by commencing action and obtaining appointment of a receiver, and then will be confined to the rents and profits accruing during the pendency of the suit. Argall v. Pitts, 78 N. Y. 239; Rider v. Bagley, 84 N. Y. 461 ; Hollenbeck V. Donnell, 94 N. Y. 342 ; Wyckoff v. Scofield, 98 N. Y. 475 ; 398 FORECLOSURE. Art. 5. Matters of Practice. Stillman v. Van Beiiren, lOO N. Y. 439; Mutual Life Ins. Co. v. Belknap, 19 Abb. N. C. 345. It is said a receiver may be appointed after the mortgagor has made a general assignment. Uphani v. Lewis, i Law Bull. 86. Where taxes were unpaid and a sale had been made for their non- payment, insurance was neglected and adequacy of security doubtful, a receiver was appointed. Wall Street Ins. Co. v. Loud, 20 How. 95. If a mortgagor becomes bankrupt, and is exercising the right to cut timber in bad faith, he may be en- joined. Ensign v. Colburn, 1 1 Paige, 503. As a defence, the mortgagor must show the property sufficient to pay the mortgage, or some valid defence which is disclosed. Sea Ins. Co. v. Stcb- bins, 8 Paige, 565 ; Lofsky v. Maj'er, 3 Sandf. Ch, 69. A mort- gagor who has parted with his interest in the premises cannot successfully oppose; the opposition must be made by a party having an interest. Wall Street Fire Ins. Co. v. Loud, 20 How, 95. As to appointment of receiver for a corporation defendant in foreclosure, see Code, § 1810; Laws 1883, chap. 378. A receiver appointed in such an action has paramount rights to rents over a receiver appointed in an action to sequestrate by § 713, subdi- vision I of the Code. A receiver may be appointed before judg- ment, and his powers will continue after judgment. Astor v. Turner, 11 Paige, 436. It is only in special cases, however, that a receiver will be appointed without notice. McCarthy v. Peake, 6 Abb. 164. By § 714 a receiver can only be appointed without no- tice where order of publication has been made pursuant to § 438. The plaintiff cannot collect rents from the owner of the equity or from the receiver, for a junior incumbrancer. Astor v. Turner, II Paige, 436; Rider v. Bagley, 84 N. Y. 467; Hozvell v. Ripley, 10 Paige, 33; Hayes v. Dickinson, 9 Hun, 277; Washington Life Ins. Co. V. Flcischauer, 10 Hun, 117. The court may order ten- ants to attorn to a receiver. Seaman'' s Bank v. Quinn, i Law Bull. 'j'j. A receiver should compel tenants not parties to attorn. Bozvery Savings Bank v. Richards, 3 Hun, 366, appeal dismissed, 68 N. Y. 637. If the grantee of a mortgagor, not liable for the debt, takes the rents and profits and delays the litigation, and there is a deficiency, he may be directed to pay to plaintiff enough to satisfy the debt, even if no receiver has been appointed. Ferguson v. Kimball, 3 Barb. Ch. 616; Bank of Utica v. Ftnch^ 3 Barb. Ch. 293. I FORECLOSURE. 399. Art. 5. Matters of Practice. Where a receiver is appointed, but not for the benefit of any particular party to the action, rents and profits must be applied to the claims in the order, of seniority. Ranney v. Peyser ^ 20 Hun, II; Keogh v. McManus, 34 Hun, 521, A receiver must pay over all rents collected by him prior to the sale of the mort- gaged premises, pursuant to the judgment of foreclosure as directed by said judgment. Those collected after the convey- ance belong of right to the purchaser of the premises. The rents in the hands of the receiver, collected previous to the convey- ance, belong either to plaintiff or to the persons who, before the sale, owned the fee of the mortgaged premises. Nichols v. Fos- ter, 9 Week. Dig. 468. A party to the action may be appointed receiver. Belles v. Duff, 37 How. 162. It is the duty of the receiver to protect the property, hidings v. Bruen, 4 Sandf. 223. And to apply to the court for instructions before exercising unusual discretion. Parker v. Browning, 8 Paige, 388. And he should collect rents. Frelinghiiysen v. Colden, 4 Paige, 204; Astor V. Turner, 3 How. 225; Steele v. St urges, 5 Abb. 442; Foster v. Toivnsend, 2 Abb. N. C. 29. The act of 1883 in relation to receivers of corporations, includ- ing the second section thereof relating to receivers' fees, applies only to receivers of corporations appointed in bankruptcy, and a receiver appointed in an action to foreclose a mortgage, executed by a corporation, is not entitled to the fees specified in the sec- tion. The allowance of commissions to such a receiver is gov- erned by the Code, § 3320, providing for the allowance by the court or the judge where not otherwise prescribed by statute. United States Trust Co. v. N. V., W. S. & B. R. R. Co.ioi N. Y. 478, citing 71 N. Y. 396, 94 N. Y. 342, 99 N. Y. 83. It is not necessary in foreclosure of an action on property, belonging to a corporation, to serve a copy of the motion papers, etc., on the receiver. Whitney v. N. V. & Atlantic R. R. Co. 5 Civ. Pro. R. 118. A receiver of rents and profits, appointed in a foreclosure suit, has no power, without the order of the court, to lessen the funds in his hands by the expenditure for repairs. It seems that, if necessary for the protection of the property, the court may direct such repairs. Wyekoff v. Seofield, 103 N. Y. 630. The court has no power to order debts already collected and in pos- session of the owner to be paid over and applied to payment of the mortgage debts. Wyekoff v. Seofield, 98 N. Y. 475. 400 FORECLOSURE. Art. 5. Matters of Practice. Such receivers possess and exercise the authority of receivers appointed by the Court of Chancery and possess no legal powers; they are officers of the court merely and their functions are limited to the care and preservation of the property committed to their charge, and they possess no authority except such as the orders of the court confer; this power of the appointment of a receiver is incidental to the jurisdiction of the court, does not depend upon the statute and is not affected by the character of the par- ties before it, whether in an individual or a corporation, or by the nature of the property ; it is most commonly exercised in foreclosure suits where, by reason of the insuf^ciency of the secu- rity, it is necessary to impound the rents and profits of the mort- gaged property during the litigation in order that they may, after the decree and sale, be applied upon the debt for the security of the mortgage. Decker v. Gardner, 124 N. Y. 338, citing Herring V. New York, L. E. &" W. R. R. Co. 105 N. Y. 340; Keeney v. Hojue Ins. {T*?. 71 N. Y. 396; Hollenbeck v. Donnell, 94 N. Y. 342; United States Trust Co. v. A^. K, W. S & B. Ry. Co. loi N. Y. 478. A receiver of rents and profits in foreclosure is entitled to the rents of the mortgaged property which accrued during the pend- ency of the action, although prior to his appointment, as against a receiver of the mortgagor appointed in supplementary proceed- ings. Donlon& Miller Mfg. Co. v. Cannella, 89 Hun, 21, 34 Supp. 1065, 69 St. Rep. 8. Where an injunction restraining collection of the rents by a receiver appointed in another action was vacated, and such receiver was subsequently appointed receiver in the foreclosure action, it was held that rents collected by him be- tween the order vacating the injunction and his subsequent ap- pointment should be accounted for in the foreclosure action. Volkening v. Brandt, 14 Misc. 156, 35 Supp. 797. The rule that the parties to a mortgage containing a clause providing for the appointment of a receiver, had thereby made the rents of the premises a part of the security, and that, therefore, the mortgagee was entitled to apply for the appointment of a receiver, was applied in MacKellar v. Rodgers, 52 Supr. Ct. 360, and in Byson v. James, 55 Supr. Ct. 374. Appeal was dismissed in the latter case, no N. Y. 633, but it was held in De Generv. Stiles, 25 St. Rep. 422; s. c. 6 N. Y. Supp. 474, that where the security was ample, although the mortgage contained a receiver- ship clause, the court would not appoint a receiver. FORECLOSURE. 4OI Art. 5. Matters of Practice. A purchaser at foreclosure is entitled to the rents from the date of the delivery of the deed, and where a receiver has been appointed and has collected rent payable in advance, it was held that the receiver was entitled only to so much thereof as had actually accrued when the deed was delivered, and on a hearing upon an application by the purchaser for an apportionment of the rent, the owner of the equity of redemption may be entitled to be heard. Cowan v. Arnold, 35 St. Rep. 134. Sub. 7. Costs. If a tender is made before judgment, either party may apply to the court to fix the amount of costs. Barlow v. Cleveland, 16 How. 364 ; Pratt v. Ramsdcll, 16 How. 59 ; Stevens v. Veriajte, 2 Lans. 90 ; Morris v. Wheeler, 45 N. Y. 708. It has been held that the provision of the Code relating to tender does not apply to equity cases. N. Y. Fire, etc. Co. v. Burr ell, 9 How. 398. But the costs must be tendered to avail defendant in an answer of tender. Eaton v. Wells, 82 N. Y. 576. It is said ten- der does not cut off the right to an allowance. Astor v. Palache, 49 How. 231. See 9 How. 398, supra. An offer of judgment may be made, as in any other action, in a foreclosure case, where judgment is asked for deficiency. Bathgate v. Haskin, 63 N. Y. 261. See, however, Penfieldv. James, 56 N. Y. 659. Costs are in the discretion of the court under § 3230. Reimer v. Dederick, 4 Week. Dig. 230 ; Church v. Kid, 3 Hun, 254; Lossee v. Ellis, 13 Hun, 657; Morris v. Wheeler, 45 N. Y. 708; Netvcomb v. Hale, 12 Abb. N. C. 338. One who unreasonably defends may be charged with costs. O' Hara v. Brophy,2\ How. 379; Barker V. Burton, 67 Barb. 458; Gallagher v. Egan, 2 Sandf. 742; Jones V. Phelps, 2 Barb. Ch. 360. And costs will ordinarily be granted to the mortgagee out of the fund. Slee v. Manhattan Co. I Paige, 48; Vroom v. Ditmas, 4 Paige, 526; Boyd v. Dodge, 10 Paige, 42; Chamberlain v. Dempsey, 36 N. Y. 144. Where one has been made a defendant improperly he may have costs against plaintiff. Nelson v. Montgomery, i Edw. 657; Millandon v. Brugiere, 11 Paige, 163; Rosa v. Jenkins, 31 Hun, 384. It is not error to allow costs in foreclosure cases to defendants who are successful in defeating a judgment for deficiency, or in reduc- ing the amount claimed to be due upon the mortgage. Bockes V. Hathorn, 17 Hun, 87. But the court will not impose costs [Special Actions — 26.] 402 FORECLOSURE. Art. 5. Matters of Practice. where parties intervene for good cause, although unsuccessful. West V. West, etc. Co. 7 St. Rep. 386. Although costs in actions of foreclosure are in the discretion of the court, yet if it appears that such discretion has been exercised under an erroneous view of the law affecting the rights of the parties, it is the duty of the Appellate Court to correct the error. Morris v. Wheeler, 45 N. Y. 708. The plaintiff is entitled, as a matter of right, to the percentages given by § 3252 of the Code. Hunt v. Middlebrook, 14 How. 300. But they are not taxable to defendant. Down- ing v. Marshall, 37 N. Y. 380; Williajns v. Hernon, 13 Abb. 297. It is held in Rosa v. Jenkins, 31 Hun, 384, and O'Neilw. Gray, 39 Hun, 566, that only two and a half per cent extra allowance can be given in foreclosure. It was so held under the old Code in Htmi v. Chapman, 62 N. Y. 333 ; Sviythe v. Rowe, Abb. Ann. Dig. 1882, p. III. But see Bockes v. Hathorn, 17 Hun, 87. The allowance may be made on application for judgment, and special notice is not necessary. Walsh v. Weidoificld, 3 Daly, 334. Allowance should not be granted before amount due is computed. Citizens' Savings Bank V. BancJi, 17 St. Rep. 79. An allowance may be made on final judgment on demurrer. McDonald v. Mallory, 46 Supr. Ct. 58 ; Dc Stuckle v. Tehuantepec R. R. Co, 30 Hun, 34. As to amount of costs which may be taxed on default, see Armstrong v. Burdock, 17 Alb. L. J. 429. A defendant against whom no demand is made for a personal judgment is not allowed costs. McRoberts v. Poolcy, 12 St. Rep. 107. The fol- lowing portion of § 3252 regulates the percentages to be allowed where only a portion of the mortgage debt is due. In an action to foreclose a mortgage upon real property, where a part of the mortgage debt is not due, if the final judgment directs the sale of the whole prop- erty, as prescribed in section 1637 of this act, the percentages, specified in this section, must be computed upon the whole sum unpaid upon the mortgage. But if it directs the sale of a part only, as prescribed in section 1636 of this act, they must be computed upon the sum actually due ; and if the court thereafter grants an order, directing the sale of the remainder, or a part thereof, the per- centages must be computed upon the amount then due ; but the aggregate of the percentages shall not exceed the sum which would have been allowed, if the entire sum secured by the mortgage had been due, when final judgment was rendered. A finding by a referee that the plaintiff have his costs of this action in foreclosure does not authorize the entry of costs person- ally against anyone. Case v. Mannis, 33 St. Rep. 44. FORECLOSURE. 403 Art. 6. Reference to Compute Amount Due. An order should not be made granting an extra allowance before the amount upon which it is to be computed has been fixed and determined and without giving any percentage to be awarded. Citizens Savings Bank v. Bancr, 14 Civ. Pro. R. 340. A leasehold interest is not real property and an action to fore- close the mortgage thereon is therefore not within the restrictions as to extra allowances in subdivision } of § 3253 of the Code. Huntington v. Moore, 36 St. Rep. 541. The expense of obtaining an unofificial search of title is not taxable as an item of disbursement in foreclosure. It is not a necessary expense taxable according to the practice of the court or by express provision of law within the meaning of § 3256 with reference to the disbursements which may properly be included in a bill of costs. Equitable Life Assurance Co. v. HtigJiec, 125 N. Y. 106. ARTICLE VI Reference to Compute Amount Due. Sub. I. Order of reference. Rules 60, 79. 2. Duties and report of referee. Sub. I. Order of Reference. Riile 60. Failure to ans\7er on mortgage foreclosure ; reference ; judg- ment on. If, in an action to foreclose a mortgage, the defendant fails to answer within the time allowed for that purpose, or the right of the plaintiff, as "tated in the complaint, is admitted by the answer, the plaintiff may have an order referring it to some suitable person as referee to compute the amount due to the plaintiff, and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage has not become due. If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and cir- cumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any payments which have been made, and to compute the amount due on the mortgage preparatory to the application for judgment of foreclosure and sale. When no answer is put in by the defendant within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plain- tiff, after the cause is in readiness for trial, as to all the defendants, may apply for judgment, at any Special Term, upon due notice to such of the defendants as have appeared in the action, and without putting the cause on the calendar. 404 FORECLOSURE. Art. 6. Reference to Compute Amount Due. The plaintiff in such case, when he moves for judgment, must show, by affi- davit or otherwise, whether any of the defendants who have not appeared are absentees, and, if so, he must produce the report as to the proof of the facts and circumstances stated in the complaint, and of the examination of the plaintiff or his agent, on oath, as to any payments which have been made. And in all fore- closure cases the plaintiff, when he moves for judgment, must show by affidavit, or by the certificate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action, containing the names of the parties thereto, the object of the action, and a description of the property in that county affected thereby, the date of the mortgage and the parties thereto, and the time and place of recording the same, has been filed at least twenty days before such application for judgment, and at or after the time of filing of the complaint, as required by law. Rule 79. Referee, who may be. Except in cases provided for by section loii of the Code of Civil Procedure, no person, unless he is an attorney of the court in good standing, shall be ap- pointed sole referee for any purpose in any pending action or proceeding. Nor shall any person be appointed a referee who is the partner or clerk of the at- torney or counsel of the party in whose behalf such application for such appoint- ment is made, or who is in any way connected in business with such attorney or counsel, or who occupies the same office with such attorney or counsel. Under Code of Civil Procedure, § 90, no person holding the office of clerk, deputy clerk, special deputy clerk or assistant in the clerk's office of a court of record or of the Surrogate's Court in either New York or Kings county can be appointed referee except by consent. In Kings county, all sales made under Laws 1876, chapter 439, must be made by the sheriff, except where he is a party or both parties agree to the appointment of a referee. Kerrigan v. Force, 9 Hun, 185, affirmed, 6?> N. Y. 381. But a sale so made in that county is not invalid, and the purchaser obtains a good title. Dickinson v. Dickey, 14 Hun, 617; Abbott V. Curran, 98 N. Y. 665. Referee's fees in foreclosure cannot exceed fifty dollars unless the property sells for ten thousand dollars or upwards, in which case the court may allow additional compensation. § 3297. He is entitled to all proper disbursements. Caryl v. Stafford, 69 Hun, 318. The court cannot, on the appointment of a referee to compute, direct that on the coming in of the report it be confirmed, and usual judgment had for foreclosure and sale, nor can an extra allowance be granted in such order. Citizens Savings Bank v. Bauer, 14 Civ. Pro. R. 340. An order of reference is in due form which directs the referee FORECLOSURE. 405 Art. 6. Reference to Compute Amount Due. to examine the plaintiff as to the truth of the allegations of the complaint where it was averred that no payments had been made and plaintiff so testified before the referee. Hat fie Id v. Malcolm, 71 Hun, 51. Where the defendant appears but fails to answer, and the plain- tiff gives due notice of application to the court for the relief de- manded in the complaint or for judgment, the court may, instead of computing the amount due, refer it to the clerk or some suit- able person to compute the amount due on such reference ; this is not such a new and independent proceeding as to require new notice to the defendant, nor need it be executed in the county in which the action is triable. Defendants who have not appeared are not entitled to notice. Kelly v. Searing, 4 Abb. 354. The affidavit to obtain reference to compute amount due should state that no answer has been received, whether moneys secured have all become due and payable, and whether any defendants are absentees or infants. Anonyinous, 3 How. 158. There can be no judgment rendered against a non-resident defendant who does not appear and who has not been personally served with a sum- mons, except upon the report of a referee as to the truth of the matters stated in the complaint. Cornhig- v. Baxter, 6 Paige, 178. And the reference and examination must be had though there are other defendants who appear and contest the plaintiff's claim and who have a common interest with such absentee in the defence of the action. Corning v. Baxter, 6 Paige, 178; Hill v. McReynolds, 30 Barb. 490. Where an answer, interposed by an infant, alleges payment of part of the amount due, the issue thus formed should be tried by the court, or by a referee appointed for that purpose, and cannot be summarily disposed of under the order of reference under the rule. Jackson v. Reon,6o How. 103. The action cannot be referred while any of the defendants, against whom the plaintiff seeks a judgment for a deficiency, have not been served with a summons, or have been served only with a notice that no personal claim is made against them and have not appeared. Goodyear v. Brooks, 2 Abb. (N. S.) 296. A referee to compute the amount due should take the oath of office. Exchange Fire Ins. Co. v. Early, 4 Abb. N. C. 78, while the contrary is held in McGotvan v. Newman, 4 Abb. N. C. 80. The referee should not act until the order has been actually 4o6 FORECLOSURE. Art. 6. Reference to Compute Amount Due. entered and a certified copy served upon him. Bonner v. Mc- Phail, 31 Barb. 106; see Biicklin v. Chapin, 53 Barb. 488. The nomination of a referee by one of the parties is not an irregularity. White v. Coulter, 3 T, & C. 608. Where a defendant interposes an answer raising a material issue but fails to appear at the trial, the plaintiff cannot have an order of reference to compute the amount due as upon a default. Ex- change Fire Ins. Co. v. Early, 4 Abb. N. C. 78. In such case the cause should be placed on the calendar and judgment demanded upon the pleadings. Van Valen m. Laphain, 13 How. Pr. 243; Boyce v. Brown, 7 Barb. 81 ; Stuyvesant v. Browning, 33 N. Y, Supr. 203. The referee may be required to compute the amount due on other mortgages in case they are set up in the answer, and ordered to ascertain whether there are any prior liens upon the premises. Chamberlain v. Dempscy, 36 N. Y. 144, reversing 7 Bosw. 540, 15 Abb. Pr. I. An order of reference of this character is in the nature of an interlocutory decree and must be made by the court. It is not appealable, but is brought up for review on appeal from a final judgment. Roberts v. White, 39 Supr. 272 ; Johnson v. Everett, 9 Paige Ch. 636; Dickenson v. Mitchell, 19 Abb. Pr. 286; Ubs- dellv. Root, 3 Abb. Pr. 142; Harris v. Mead, 16 Abb. Pr. 257. If, however, a reference is directed which is unauthorized, an appeal will lie. Cram v. Bradford, 4 Abb. Pr. 193; Whitaker v. Desfossc, 7 Bosw. 678 ; Chamberlain v. Dempscy, 36 N. Y. 144. In an action in which some of the defendants answered and some of the defendants did not, a reference was taken and the issues decided against defendants, but the amount due was not computed. The plaintiff then applied for the relief demanded in the complaint, on notice, and, no opposition being made, took an order of reference to compute the amount due, and, after obtaining the report, on notice, brought the cause to a hearing and took judgment of foreclosure and sale. Held, that he was regular. Hill v. McReynolds, 30 Barb. 490. As against a non-answering defendant in foreclosure, it is irregular to combine in one reference the inquiry as to the amount due with the trial of issues between the plaintiff and other defendants, and to enter judgment as of course upon the report without application to the court for judgment against the non- FORECLOSURE. 407 Art. 6. Reference to Compute Amount Due. answering defendants. In a suit for foreclosure against defend- ants one of them appeared, but failed to answer, while the others joined issue. The cause being before the court in its order on the calendar, upon notice of application for relief as against non- answering defendant, there being no one in attendance upon his behalf, and upon notice of trial as to the others, an order of reference of the matter in controversy was made. The referee proceeded to report not only upon the issue in the cause but upon the plaintiff's right to relief as against the non-answering defendant, and upon the report the plaintiff entered judgment as of course for foreclosure and sale, and against the non-answering defendant for any deficiency; defendant moved to set aside the judgment for irregularity ; Jicld, that the reference was regular as to the defendant who joined issue; that it was irregular as to the defendant who did not answer, there being no issue between him and the plaintiff to direct any other reference than one to ascer- tain and report the amount due, and that the defect might be cured, after judgment and sale, by a reference to compute the amount due, the judgment to stand until the coming in of the report, and then to be modified conformably thereto. Cram v. Bradford, 4 Abb. 193. Where there are absentees, the order should direct the referee, among other things, to take proof of the facts set forth in the complaint, and report to the court ; plaintiff must adduce legal proof — secondary evidence will not answer — and to report the proof and examinations had before him. Wolcott v. Weaver, 3 How. 159. Sub. 2. Duties and Report of Referee. The referee cannot accept an affidavit as proof of the amount due. Security Fire his. Co. v. Martin, 1 5 Abb. 479. The evidence of the witnesses must be signed, if the reference is to examine plaintiff, or his agent, on oath, as to payments under Rule 30, which requires that, in references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses must be signed by them, and the report of the referee filed with the testi- mony. If the plaintiff is a corporation, its officers should be examined, in a proper case, as to the payments which ought to be credited on the mortgage. Ontario Bank v. Strong, 2 Paige, 301. In case of infants or absentees, the plaintiff must prove his 408 FORECLOSURE. Art. 6. Reference to Compute Amount Due. debt before the reference, in the same manner as if nothing had been admitted in the answer. Mills v. Dennis, 3 Johns. Ch. 367. Husband and wife may testify for each other on the reference. Laingy. Titus, 18 Abb. 388. The first duty of the referee under the statute, aside from com- puting the amount due, is to ascertain whether the mortgaged premises are so situated that they can be sold in parcels, without injury to the interests of the parties. The inquiry is, how can the mortgaged premises be sold so as to realize the most money? The benefit mentioned and intended by the statute is a benefit to all parties. The court will look at the pleadings and other papers before it on the hearing, aside from the report of the referee, in determining the manner of sale. Gregory v. Campbell, 16 How. 417. The referee, in case the premises can be sold to advantage in parcels, should report that fact together with the order of sale. Ferguson v. Kimball, 3 Barb. Ch. 616; Rathbone v. Clark, 9 Paige Ch. 648 ; Perrine v. Striker, 7 Paige Ch. 598 ; Erie Co. Savings Bank v. Roop, 48 N. Y. 292. As to provision for sale in parcels, see Rule 61 ; also § 1678. In an action to foreclose twelve mortgages made to secure future advances, the trial judge found all the facts for the plaintiff, and ordered judgment in his favor; but instead of computing the amount due upon the mortgages in court, which would have occupied much time, sent it to a referee to make the computation. The judgment was subsequently ordered upon the findings and decision of the court and the report of the referee. Held, not error. Dow v. Lansdell, 10 St. Rep. 373- The method of proving the bond and mortgage on a reference to compute the amount due on failure to answer is considered in Knickerbocker Life Ins. Co. v. Hill, 16 Abb. (N. S.) 321. The owner and holder of a mortgage may pay taxes remaining unpaid on mortgaged premises in order to protect the security, although there is no clause in the mortgage authorizing him to do so, and the claim can be enforced as part of the mortgaged debt. Sidenbergv. Ely, go N. Y. 257; Williams v. Townsheytd, 31 N. Y. 414. The referee should include the amount of such taxes, assessments or liens of a like nature and include with interest, adding it to the mortgage debt. Robinson v. Ryan, 25 N. Y. 320; Faure v. Wynans, Hopk. Ch. 283; Burr v. Veeder, 3 Wend. 412. Where the mortgage contained a clause requiring the mortgagor FORECLOSURE. 409 Art. 6. Reference to Compute Amount Due. to keep the premises insured, and agreeing that in case of failure to do so the mortgagee should insure, moneys paid by the mort- gagee for insurance will be a charge on the premises and may be included in the amount due; otherwise where there is no such agreement in the mortgage. Faurc v. Wynans, Hopk. Ch. 283. The recital in the bond and mortgage is evidence of its execu- tion. Cooper V. Newland, 17 Abb. 342. In Knickerbocker Life Ins. Co. V. Hill, 16 Abb. (N. S.) 321, a number of cases are cited in brief of counsel for appellant, to the point that the mortgage cannot be received in evidence until after proof of the bond as follows : Jackson v. Blodget, 5 Cow. 206 ; Jackson v. Willard, 4 Johns. 43; Langdon v. Biiel, 9 Wend. 80; Jackson y. Bronson, 19 Wend. 325; Green v. Hart, i Wend. 580 ; Rose v. Baker, 13 Barb. 230; Parnialee v. Dann, 23 Barb. 461 ; Cooper v. Nezvlaftd, 17 Abb. 342; Merritt v. BartJiolick, 36 N. Y. 44. The mort- gagee must either produce the bond or account for its absence ; the want of possession of the bond, unexplained, will operate as evidence of payment, and if payment be alleged as a defence, the mortgagee cannot succeed. Bergen v. Urbahn, 83 N. Y. 49. But the loss of the bond may be shown, and if there is a pre- sumption of loss, the mortgagee may have judgment of foreclo- sure and sale. Stoddard v. Gaylor, 90 N. Y. 575. A bond of indemnity is not required. Blade v. Noland, 12 Wend. 173; Wright V. Wright, 54 N. Y. 437; Frank v. Wessels,6A, N. Y. 155. But a mortgage may be valid as to a lien upon the land without a bond. Gaylord v. Knapp, 15 Hun, 87. And even though a bond is recited in the mortgage it is competent to show none was ever executed. Goodhue v. Berrien, 2 Sandf. Ch. 630 ; Bergen v. Urbahn, 83 N. Y. 49. As to powers and duties of referees to compute amount due, see Faure v. Winans, Hopk. Ch. 283; and Harris v. Fly, 7 Paige, 421. In the first case an order was made to report as to whether an agreement existed between mortgagor and mortgagee that the premises should be insured at the expense of the former. In the latter, that on an ordinary reference, where the complainant's claim to priority was questioned, the master to compute the amount due was not authorized to settle the priority between the parties, but must leave it for the decision of the court upon the hearing. The amount due on the mortgage for principal and interest may be collected, though it exceed the penalty of the bond. Mower v. 4IO FORECLOSURE. Art. 6. Reference to Compute Amount Due. Kip, 6 Paige, 88. If taxes or rents have been paid by mortgagee they can be collected. Silver Lake Bank v. North, 4 Johns. Ch. 370; Robinson v. Ryan, 25 N. Y. 320. And the computation of the referee may be overruled by the court. Crine v. White, i Law Bull. 92. The report must be confirmed at Special Term. Swarthout v. Curtis, 4 N. Y. 415. And when confirmed, be- comes the act of the court. McGoiivcrn v. Newman, 4 Abb. N. C. 80. When a decree has been made upon pleadings and proofs appointing a referee to compute the amount due, to examine the plaintiff as to payments, and to take proof as to the allegations of the bill against an absent defendant, and directing a sale of the premises on the confirmation of the report, the parties who have appeared and answered are concluded by such decree as to the issues and pleadings, and the referee has no right to examine as to any facts except those relating to payments on the mort- gage, nor to examine the absent defendant on behalf of his co-defendant as to a defence of fraud set up in the answer. Mc- Cracken v. Valentine, 9 N. Y. 42. If any party has objections to the report of a referee to compute, it is his duty to file and serve exceptions, or if any irregularity is alleged, to move to set the report aside; silence must be deemed acquiescence in the report of the reference and of the regularity of the proceedings before him. Chamberlain v. Dempsey, 36 N. Y. 144. To sustain a report of sale it cannot be shown by affidavits as against excep- tions to it, that the terms of sale were different from the report. Koch V. Pure ell, 13 J. & S. 162. The .statement at the conclusion of the report that plaintiff is entitled to judgment as specified in the report, is a sufificient direction where the reference was to hear and decide. Albany County Savings Bank v. McCarty, 71 Hun, 228. The referee must take testimony and report upon the validity of bonds secured by a mortgage. Bockes v. Hathhorn, 20 Hun, 503- The referee should report the amount due even though the allegation is that a less amount is due than appears by the mort- gage. Peck v. N. V. Co. 85 N. Y. 246. The offering of evidence by a plaintiff does not prevent his obtaining the benefit of any admissions on the part of the defendant by reason of failure to denv the allegations in the complaint. Darling v. Breivster, 55 II FORECLOSURE. 411 Art. 7. Judgment, the Character and Extent of Relief. N. Y. 667. The referee need not set out at length the items mak- ing up the amount due. Sidcnbcrgv. Ely, 90 N. Y. 257. It is held that where mortgagee has been compelled to pay rents to preserve the property, the amount so paid by him may be in- cluded in the amount found due, where the action is against the mortgagor or against his grantee, with notice of that fact, but not in case it is against the grantee without such notice. Cattlin V. Grissler, 57 N. Y. 363 ; Robinson v. Ryan, 25 N. Y. 320. The court has control over the computation and may send the report back for further findings. Austin v. AJuarnc, 61 N. Y. 6. The report of the referee should be confirmed by the court and hearing should be had at Special Term. McGowen v. Newman, 4 Abb. N. C. 80; SivartJioiitv. Curtis, 4 N. Y. 415 ; Empire Associa- tion V. Stevens, 8 Hun, 515. Where the mortgagee was dead and receipts had not always been taken by the mortgagors for pay- ments made, there was positive testimony that deceased had said, in order to reduce his taxes, that the mortgages were pretty much all paid, and that the defendants had paid their mortgage off to a certain sum named, held, that the referee to compute the amount due had the right to believe and find as a fact that the sum named was all that was then due deceased. WJdtman v. Foley, 36 St. Rep. 133. ARTICLE VII. Judgment, the Character and Extent of Relief. §§ 1626, 1632. Rule 6i. Sub. I. Judgment, the character and extent of relief granted. § 1626. Rule 61. 2. Effect of final judgment and conveyance. § 1632. 3. Motion to vacate judgment and appeal. Sub. I. Judgment, the Character and Extent of Relief Granted. § 1626. Rule 61. § 1626. Final judgment ; what to contain. In an action to foreclose a mortgage upon real property, if the plaintiff be- comes entitled to final judgment, it must direct the sale of the property mort- gaged, or of such part thereof as is sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action. Rule 61. Judgment for sale — form of — disposition of surplus money — selection of refereo. In every judgment for the sale of mortgaged premises, the description and particular boundaries of the property to be sold, so far, at least, as the same can 412 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. be ascertained from the mortgage, shall be inserted. And, unless otherwise specially ordered by the court, the judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, as provided by sections 1626 and 1676 of the Code, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee, and that the plaintiff, or any other party, may be- come a purchaser on such sale; that the sheriff or referee execute a deed to the purchaser; that out of the proceeds of the sale, unless otherwise directed, he pay the expenses of the sale as provided in section 1676 aforesaid, and that he pay to the plaintiff, or his attorney, the amount of his debt, interest and costs, or so much as the purchase money will pay of the same, and that he take the receipt of the plaintiff, or his attorney, for the amount so paid, and file the same with his report of sale; and that the purchaser at such sale be let into possession of the premises on production of the deed. All surplus moneys arising from the sale of mortgaged premises, under any judgment, shall be paid by the sheriff or referee making the sale within five days after the same shall be received and be ascertainable, in the city of New York to the cham.berlain of the said city, and in other counties to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court, and every judgment in foreclosure shall contain such directions, except where other provisions are specially made by the court. No report of sale shall be filed or confirmed, unless accompanied with a proper voucher for the surplus moneys, and showing that they have been paid over, deposited, or disposed of in pursuance of the judgment. The referee to be appointed in foreclosure cases, to compute the amount due, or to sell mort- gaged premises, shall be selected by the court, and the court shall not appoint as such referee a person nominated by the party to the action, or his counsel. Under the New York Practice, in mortgage foreclosures, the decree for the sale of the mortgaged premises must contain a description of the property to be sold, with its particular bounda- ries, so far as the same can be ascertained from the mortgage, and unless otherwise specially ordered by the court, the judgment should direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of the action, as provided by the Code, be sold by and under the direction of the sheriff, or a referee appointed by the court ; that the plaintiff or any other party may become the purchaser at such sale ; that the sheriff or referee appointed to make the sale, execute to the purchaser a deed of the premises sold ; that out of the proceeds of the sale, unless otherwise directed, he pay all taxes, assessments and water rates, which are liens upon the property sold, and redeem the prop- erty sold from any sales for unpaid taxes, assessments or water rates which have not apparently become absolute as prescribed FORECLOSURE. 413 Art. 7. Judgment, the Character and Extent of Relief. by the Code, and that he also pay to the plaintiff or to his attor- ney the amount of his debt, interest and costs, or so much thereof as the purchase money will pay, and that the purchaser at such sale be let into possession of the premises on production of the referee's deed. Wiltsie on Mortgage Foreclosure, § 470. As to the order of sale in parcels, see § 1678 and cases cited. A court of equity has, it is said, inherent power to order a sale of the mortgaged premises for the debt independent of the stat- ute — Lansing v. Goelet, 9 Cow. 346; Mills v. Dennis, 3 Johns. Ch. 367 — and the sale must be by virtue of such a decree. Hart V. Ten Eyck, 2 Johns. Ch. 262. Section 1626, however, expressly provides that the decree must direct the sale of the property, and it seems now to be the only method of foreclosure by action recognized by the statute. Judgment of foreclosure is final and not an interlocutory judg- ment ; Barnard v. Onderdonk, 1 1 Abb. N. C. 349 ; Morris v. Morange, 38 N. Y. 172; and directions as to the payment of a judgment for deficiency may be contained in it. Moore v. Shaw, 15 Hun, 428; appeal dismissed, yy N. Y. 512. When taxes remain outstanding and unpaid the decree may properly provide that the taxes due on the property be first paid out of the proceeds of the sale. PougJikeepsie Savings Bank v. Winn, 56 How. 368. The taxes should be deducted from the proceeds, in fixing the amount of the deficiency. Fleischauer v. Doellner, 60 How. 438. It is no objection that the final judgment of sale is rendered by a judge other than the one who rendered the pre- liminary judgment settling the rights of the parties and who ordered a reference as to number and amount of incumbrancers. Chamberlain v. Dempsey, 36 N. Y. 144. If the decree attempts to give any relief not asked for by the pleadings, it will be vacated. Simonson v. Blake, 20 How. 484. And it is ineffectual if it attempts to determine rights of persons not parties to the suit. Watson v. Spence, 20 Wend. 260 ; Totten v. Stuyvesant, 3 Edw. 500. Only the rights and interests possessed by the mortgagor at the time of the mortgage can be sold. A judgment which forecloses a prior mortgage is irregular and may be opened on motion of the prior mortgagee. M c Reynolds v. Munns, 2 Keyes, 214. But, in case the prior mortgagee has been negligent in asserting his rights, he will not be allowed to distrub a bona fide purchaser, 414 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. but will be compelled to follow the fund realized at the sale. Hamlin v. McCahill, Clarke, 249. The court has power to direct the sale of all the property covered by the mortgage, though the amount due may be raised by the sale of a portion only. De Forest v. Farley, 4 Hun, 640. And it may direct the entire premises to be sold for the benefit of subsequent incumbrancers, though more than sufficient to satisfy the plaintiff's claim. A sale of two buildings in one lot is not necessarily invalid ; whether such sale be valid or not is to be determined by the circumstances of the particular case. Wallace v. Feeley, 61 How. 225. The holder of the equity of redemption is not entitled to have a par- ticular parcel sold first which corresponds to no prior division of the whole tract. EllszvortJi v. Lockzvood, 9 Hun, 548. If the premises at the time of the execution of the mortgage consisted of a single tract, the mortgagee, upon a foreclosure, is not bound to sell in parcels though subsequently subdivided into lots. Lane V. Conger, 10 Hun, i. When, by subsequent conveyances, different equities have been created as to interests in different parcels of a mortgaged estate, that portion will be sold last on foreclosure which constitutes an owner's single security, and if it would be a sacrifice to sell undi- vided interests in a parcel separately, where the whole parcel may be sold, a sale of the whole will be decreed and the equities be- tween the different parts will be adjusted on the coming in of the surplus. Van Slyke v. Van Loan, 26 Hun, 344. A purchaser of a part of mortgaged premises may require that all the remainder be first sold to satisfy the mortgaged premises before resort to his property, although the mortgaged property be situated in two States, and the court in which the action to foreclose the mort- gage is pending may order an assignment of the bond and mort- gage to such part purchaser upon his paying the amount due, with costs. Welling v. Ryerson, 94 N. Y. 98. The rights and equities of the parties as to sale in parcels and order of sale and rule of law applicable are fully considered under § 1678. A decree having been entered pursuant to a previous agreement between the plaintiff and the purchaser, and sale had, the plain- tiff is bound by it. Belter v. Lyon, 2 St. Rep. 505. Where the Supreme Court had jurisdiction of the cause of action and the parties, its decree is valid although part of the premises covered by it are in another State. Union Trust Co. v. Ohnstead, 2 St. FORECLOSURE. 4^5 Art. 7. Judgment, the Character and Extent of Relief. Rep. 506, 102 N. Y. 729. So long as the sale of property on foreclosure remains incomplete by reason of refusal of mortgagor, who was purchaser, to complete the sale, the mortgagee cannot be compelled to waive his security and take a cause of action as on a contract debt. Morehouse v. Morehouse, 3 St. Rep. 790. A judgment in foreclosure, although determining the obligation to pay, does not necessarily determine the rights of the defendant in the action against each other. Peet v. Kent, 5 St, Rep. 134. A court of equity has the right to so control the proceedings as to produce a just result, and to protect the rights of all parties. The General Synod, ete. v. Lincoln, 6 St. Rep. 13. It seems it is competent for the court, in the judgment of foreclosure, to direct the land to be sold free of all liens, taxes, or assessments, or subject thereto, or it may require them to be paid out of the proceeds of the sale under such terms and conditions as it shall prescribe. Day v. Tozvn of Neiv Lots, 107 N. Y. 148. A judg- ment of foreclosure, which is not void, cannot be attacked in a collateral action. Batter man v. Albright, 6 St. Rep. 334. A judgment of foreclosure and sale is not a merger of the debt; it is a means of enforcing the Hen of the mortgage which remains till the debt is satisfied. Barnard v. Onderdonk, 98 N. Y. 158. But the rights of subsequent incumbrancers may be protected by the court in the sale of the property, where a portion of it is suffi- cient to satisfy the mortgage by ordering the sale of enough so that other incumbrancers may be paid. Livingston v. Mildruni, 19 N. Y. 440. Where it was for the interest of the owners of the equity to sell the whole, it was so ordered, although a portion of the premises would have paid the mortgage debt. Brevoort v. Jackson, I Edw. 447. A judgment in an action to foreclose a junior mortgage may direct a sale subject to the prior incumbrance. Western Ins. Co. v. Eagle Fire Ins. Co. i Paige, 284; Daily v. Kingon, 41 How. 22. The judgment may commit to the referee the discretion as to selling in the inverse order of alienation as the rights of the par- ties may appear, and it is a proper provision. Rathbonc v. Clark, 9 Paige, 648. Where there are liens subsequent to the mortgage, the court may order the entire mortgaged premises sold, though not necessary to pay plaintiff's claim, or part of the whole may be sold. Deforest v. Farley, 62 N. Y. 628. Contra, Merchants and Traders Savings Bank v. Roberts, i Abb. 381. If a party 4l6 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. to the suit wishes to have the premises sold in a particular order, he should see that the decree so provides; or, after the entry of the decree, he may move for an order to the referee directing the manner in which the premises are to be sold ; Vandercook v. Cohoes Savings Institution, 5 Hun, 641 ; and the court may order a refer- ence for that purpose. .V. Y. Life Ins. aiid Trust Co. v. Cutler, 3 Sandf. Ch. 176; Bard v. Steele, 3 How. no. The rule requir- ing a sale of different portions of the mortgaged premises in the inverse order of alienation is applied in Thomas v. Moravia, etc. Foundry, etc. Co. 43 Hun, 487, citing Stuyvesant v. Hall, 2 Barb. Ch. 151 ; Bernhardt v. Lymburncr, 85 N. Y. 172. See as to sale in parcels, § 1678. Where the terms of the mortgage are followed in the direction of sale, and the referee sells a less estate than that expressed in the mortgage, the sale transfers all the title the mortgagor had in the premises, and it does not lie with a mortgagor nor with a purchaser, who has full knowledge of the facts, to object. Gra- ham V. Blcakie, 2 Daly, 55. In actions to foreclose mortgages the courts have power to direct the payment by the mortgagor of any residue of the mortgage debt that may remain unpaid after sale of the mortgaged premises, in cases where the mortgagor shall be personally liable for the debt secured by the mortgage, and if the mortgage debt be secured by the covenant or obliga- tion of any person other than the mortgagor, the plaintiff may make such person party to the action, and the court may ad- judge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such payment as in other cases. ScJiwinger v. Hickok, 53 N. Y. 280. Judgment may he had for deficiency against representatives of deceased mortgagor. Glacius v. Fogel, 88 N. Y. 434. Plaintiff in a foreclosure cannot have contingent personal judg- ment against some of the defendants, before final judgment of foreclosure Cobb v. Thornton, 8 How. 66. After one of two joint purchasers who assumed an existing mortgage, has paid his share of the debt, the court will direct the interest of the other purchaser to be first applied in payment of the mortgage. Cornell v. Prescott, 2 Barb. 16. In Ferguson v. Kimball, 3 Barb. Ch. 616, modified 2 N. Y. 360, the form and requisites of a judg- ment of foreclosure and sale are given. Where mortgage is con- FORECLOSURE. 4^7 Art. 7. Judgment, the Character and Extent of Relief. ditioned for support of mortgagee, several owners of different parcels of mortgaged premises are bound to contribute to her support, ratably. But in foreclosure of a mortgage, conditioned for the support of the mortgagee, no relief can be granted for a neglect to support after the commencement of the action. " Mor- rison v, Morrison, 4 Hun, 410. For form of judgment where there is a right to move a building, see Brown v. Keeney Cheese Association, 59 N. Y. 242. Where prior lessors, made parties, set up their priority, the complaint should be dismissed as to them; judgment establishing their priority and amount should not be given against the other defendants. Payn v. Grant, 23 Hun, 134. Prior incumbrancers may be made parties, for the purpose of having the amount of their incumbrances ascertained and paid off, but if their priority is not stated in the complaint, or provided for in the judgment, they do not lose any rights by failing to answer, and do not waive priority of their liens unless the land was sold free of their liens, with their consent. Emi- grant Industrial Savings Bank v. Goldfuan, 75 N. Y. 127. But it seems that one who claims under an unrecorded deed prior to the mortgage is a proper defendant, and the question of priority is necessarily involved and proper to be determined in the action. Brown v. Volkening, 64 N. Y. 76. An amendment to a decree of foreclosure, made before the sale, striking out a direction that the referee deduct from moneys arising on the sale any lien or liens on the premises, and directing him to sell subject to such liens, cannot affect the rights of defend- ant and is within the power of the court. Valentine v. McCue, 26 Hun, 456. Where a defendant's mortgage is adjudged to be prior to part of plaintiff's, but it appears it is involved and ques- tioned in another action, it is proper to provide that distribution await the result of such litigation. Bnllymore v. Sezuard, 15 Week. Dig. 283. It seems that on foreclosure of a junior mort- gage the court has power to direct a further sale of the premises, to pay a subsequent mortgage. McBride v. LezvisoJin, 7 Hun, 524. When, upon the foreclosure of a mortgage, the holder of a prior incumbrance is not a party, he should not be allowed, in an action for the foreclosure of his mortgage, to have the premises sold subject to the lien of the prior mortgage, but a decree allow- ing him to redeem from it should be entered. Salmon v. Allen, II Hun, 29; afterward reported as Salmon v. Gedney, 75 N. Y. [Special Actions — 27.] 4l8 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. 479. See, also, Bache v. Purcell, 6 Hun, 518. In an ordinary action of foreclosure, judgment for payment to plaintiff of moneys awarded for a portion of the land taken for public pur- poses and for foreclosure of the balance is proper. Hooker v. Martin, 10 Hun, 302. Where, pending a foreclosure for interest, the principal be- comes due, and recovery for the whole is allowed, the judgment should be drawn in conformity with the provisions regulating cases in which suit is brought for an installment, and the princi- pal becomes payable, while the action is pending, as under § 1636. Sidenberg v. Ely, i Law Bull. 70. A judgment against the administrator of the mortgagor, for a deficiency, cannot be declared a lien upon the surplus arising from another foreclosure sale. Fliess v. Buckley, 24 Hun, 514, 90 N. Y. 286. Where the bond and mortgage are shown to have been in possession of plaintiff's testator four months before his death, and six years had since elapsed and no one claimed payment, and the bond and mortgage could not be found, it was held error to make a decree in foreclosure conditional on the giving a bond of indemnity by plaintiff, since payment by defendant in good faith would protect him against any other claimant. Stoddard v. Gailor, 90 N. Y. 575. Where a purchaser at a foreclosure sale, who has deducted from the purchase price an assessment, thereafter has the assess- ment vacated, the decree of sale will not be amended so as to compel him to allow the amount of the assessments, although similar assessments had, at the time of the sale, been vacated at the instance of other parties. Browning v. O'Connell, 4 Law Bull. 9. A judgment of foreclosure upon a leasehold interest in lands in the Indian reservation will not be amended on the ground the lease is invalid. Sheehan v. Mayer, 41 Hun, 609. A decree in foreclosure does not extinguish the mortgage, and until the bond or debt, to secure which the mortgage was given, is fully paid, the mortgagor cannot require the return or cancelation of the mortgage. Barnard v. Onderdonk, 98 N. Y. 168. On the fore- closure of a mortgage, the property was bought in by the mort- gagee, and a judgment for deficiency was obtained against the mortgagor. Afterward the property was reconveyed to the mortgagor, and a sum of money loaned him, to be secured by mortgages on the property and on other property. The defi- i FORECLOSURE. 419 Art. 7. Judgment, the Character and Extent of Relief. ciency judgment was to be satisfied, and the satisfaction given to a third party. In an action to foreclose the mortgage on the other property, usury was set up and sustained. The mortgagee brought an action to foreclose the mortgage on the property in dispute, bought it in and obtained a deficiency judgment, and also brought an action to restrain the person to whom the satis- faction piece had been given from delivering it, and to have the original deficiency judgment declared valid; held, that by the judgment declaring the mortgages on the other property to be void, the consideration for which the satisfaction piece was given failed, and the original debt was restored. Russell v. Nelson, 99 N. Y. 119. The court has ample power to make such corrections in a judg- ment of foreclosure as changed conditions may render necessary. Mutual Life Ins. Co. v. Newell, 78 Hun, 293, 60 St. Rep. 241, 28 Supp. 913. It is a fundamental doctrine that all persons whose interests are to be affected by a judicial decree must be made parties either individually or by representation, or have what is in some cases equivalent notice, so that they may have an opportunity to be heard, and as to such persons, when not parties or represented by a judicial sentence, is a nullity. So held where assignee in bankruptcy was not made a party. Landon v. Totvnshend, 16 Civ. Pro. R. 161, reversing 44 Hun, 561. Where the relief demanded was a foreclosure and sale and judgment for deficiency against a defendant not answering; Jield, that a judgment granting such relief was not authorized, as it appeared from the findings that such defendant had no interest in the bond. Olcott v. KoJilsatt, 8 N. Y. Supp. 117 S. C. 27 St. Rep. 914. The rule that real estate should be sold in the inverse order of alienation applied to the right of way over lands, and where the owner of the right of way agreed to bid upon a foreclosure sale for the property, exclusive of the right of way, the amount of the mortgage debt and costs, the court will protect his rights, and order the premises other than the right of way to be first sold. Case v. Mannis, 33 St. Rep. 44. The court has power to order a sale of the whole of the mort- gaged premises even if sale of a part thereof would be sufificient to discharge the mortgage of the plaintiff and prior mortgages. 420 FORECLOSURE, Art. 7. Judgment, the Character and Extent of Relief. where a proper case for the exercise of that power is presented, this with a view not to the satisfaction of the plaintiff's mortgage, but to the better protection of the subsequent liens. Section 1626 should not be regarded as prescribing an invariable form for judgments in foreclosure. Dobbs v. Xicbtihr, 19 St. Rep. 909. In an action to foreclose a mortgage where a part of the lands covered by it are in another State, the court has power to decree a sale of the whole and may require the mortgagor to execute a conveyance to the purchaser. Where the provisions for the con- veyance are omitted from the judgment, the court has power after a sale to amend the judgment by inserting therein such a provision. Union Trust Co. of Nezu York v. Olmstead, 102 N. Y. 729. The court has no jurisdiction on foreclosure of a mortgage, to enter a decree directing the sale of other real estate not subject to the mortgage, although the owner thereof is a party to the action, and so far as it purports so to do, the decree is void. Clapp V. McCabe, 84 Hun, 379, 32 Supp. 425, 65 St. Rep. 699. Where the mortgagee is in possession, it is proper in an action for foreclosure to charge him with the rents and profits of the land which he has received, and if he has collected rents and profits sufificient to pay the mortgage in full, the complaint should be dismissed without costs. Smith v. Cross., 85 Hun, 58, 32 Supp. d-j-j, 66 St. Rep. 61. An amendment of a judgment of foreclosure in an action in which the mortgagees trustee was made a party but did not answer, by directing such trustee to convey to the purchaser at the sale, is at most voidable and not void, and disobedience thereof by the trustee is ground for his removal. Harrison v. U7iion Trust Co. 144 N. Y. 326, 39 N. E. Rep. 353, 6^ St. Rep. 668, affirming 80 Hun, 463, 62 St. Rep. 276, 30 Supp. 443. In Bigelow V. Davol, 53 St. Rep. 407, 23 Supp. 494, it was held that a decree should have merely provided for the sale subject to rights acquired under a prior mortgage. In foreclosure against the devisees of the deceased mortgagor, moneys misappropriated by the mortgagee as trustee of the estate and guardian of the defendants, should be deducted from the amount of the mortgage and an accounting may be ordered for that purpose. Ingalsbe v. Murphy, 84 Hun, 181, 32 Supp. 569, 65 St. Rep. 792. The transfer by a mortgagee of a note of the mortgagor which, when paid, was to be applied on the mort- I FORECLOSURE. 42 1 Art. 7. Judgment, the Character and Extent of Relief. gage, operates as a payment so long as it remains in the hands of the transferee and cannot be produced by the mortgagee or the assignee of the mortgage, and the amount thereof should be de- ducted on foreclosure from the amount otherwise due on the mortgage. Fitch v. McDowell, 145 N. Y. 498, 65 St. Rep. 369, 40 N. E. Rep. 205, afifirming 80 Hun, 207, 61 St. Rep. 776, 30 Supp. 31. Sub. 2. Effect of Final Judgment and Conveyance. § 1632. ^ 1632. Xjffect of conveyance upon sale. A conveyance upon a sale, made pursuant to a final judgment, in an action to foreclose a mortgage upon real prooerty, vests in the purchaser the same estate, only, that would have vested in the mortgagee, if the equity of redemption had been foreclosed. Such a conveyance is as valid, as if it was executed by the mortgagor and mortgagee, and is an entire bar against each or them, and against each party to the action who was pduly summoned, and every person claiming from, through or under a party, by title accruing after the filing of the notice of the pendency of the action, as prescribed in the last section. The deed is a complete bar to the equity of redemption. Lans- ing V. Goelet, 9 Cow. 346. The declaration in § 1632 that the conveyance "is as valid as if it were executed by the mortgagor and mortgagee, and is an entire bar against each of them," was not intended to convey any other title which might be in the mortgagee paramount to the mortgage foreclosed, but simply for the purpose of conveying the mortgagor's equity of redemption and an entire bar as to the mortgagee of all his claim under that mortgage. Clements v. Griswold, 46 Hun, T^yj. A foreclosure sale passes the title of each and every of the parties to the suit, and the deed of the officer making the sale is as effectual as if the mortgagor and mortgagee had united in a deed of the property, and is a bar against all the parties to the suit. The title passes to the purchaser, even though the judgment should be reversed or set aside for error or irregularity on appeal. Smith v. Joyce, 25 Week. Dig. 106; Ray nor v. Wilson, 6 Hill, 469; Hening v. Panett, 4 Daly, 543; Clements v. Griswold, a^^ Hun, 377; Wood v. Chapin, 13 N. Y. 509; Slatterly v. Schzuannecke, 44 Hun, 75; see Seward v. Huntington, 94 N. Y. 104; Noonan v. Brennerman, 8 St. Rep. 91 ; Holden v. Sackett, 12 Abb. 473 ; Dc Forest v. Far- ley, 62 N. Y. 628. But it is a bar only as against parties prop- erly made parties to the action, and does not bar the title of one who has paramount title to the mortgagor and mortgagee. Lewis 422 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. V. Smith, 9 N. Y. 502; Payn v. Grant, 23 Hun, 134; Oaunbaugh V. Wing, 12 Week. Dig. 566; Merchants' Bank v. Thompson, 55 N. Y. 7; Rathbone v. Hooney, 58 N. Y. 463; Emigrant Indus- trial Bank v. Goldman, 75 N. Y. 127; Frost v. Coon, 39 N. Y. 428. The master's deed may be construed as a release by the mort- gagor of the equity of redemption. Packer v. R. & S. R. R. Co- 17 N. Y. 283. The effect of the foreclosure deed, as determined by statute, is to vest in the purchaser the entire interest and estate of the mortgagor and mortgagee, as it existed at the date of the mort- gage, and unaffected by the subsequent conveyances or incum- brances of the mortgagor. Rector of Christ Church v. Mack, 93 N. Y. 488. The purchaser takes the title of the mortgagor at the date of the mortgage, and if his title is a mere equity, that is all that is transferred. Stezvart v. Hutchinson, 29 How. 181. The master can only convey what is included in the decree. Laverty v. Moore, 33 N. Y. 658. The rents of the mortgaged premises accruing or becoming payable between the day of the sale and the time when the purchaser will be entitled to the possession of the premises, belong to the owner of the equity and not to the purchaser at the sale. Astor v. Turner, ii Paige, 436. A mort- gage executed by a grantee holding under an unrecorded deed, of which mortgage an assignment to one not a party has been recorded before filing the lis pendens, is cut off by a foreclosure of a prior mortgage. Kipp v. Brandt, 49 How. 358. The fore- closure is binding on an assignee in bankruptcy who has notice of the action pending against his assignor. Cleveland v. Boerum, lAt N. Y. 613. When a mortgage was foreclosed without joining the holder of a subsequent mortgage on the same premises, whose title appeared of record, and on the sale under foreclosure the first mortgagee purchased the property and received the rent and profits, it was held, as to the second mortgage, he merely became mortgagee in possession, and was liable to account for the rents and profits, and that the utmo.st effect of the foreclosure and sale was to transfer the equity of redemption from the mortgagor to the plaintiff in the action. Welch v. Rutgers Fire Ins. Co. 13 Abb. 33. Where the holder of the prior mortgage forecloses and bids in the premises, the presumption is that he bids to the value of the equity of redemption only, and he must be deemed to hold the FORECLOSURE. 423 Art. 7. Judgment, the Character and Extent of Relief. premises as a fund for the payment of the first mortgage. Mat- thews V. Aikin, I N. Y. 595. A subsequent mortgagee is cut off where made a party, though his mortgage was not paid from the proceeds, though they were sufficient. Wood v. McGliighan, 2 Hun, 150. A foreclosure by judgment is wholly inoperative as to an existing judgment creditor not a party to the suit. It seems that a judgment creditor who has not made his lien specific by a sale of the land, is entitled to redeem from a mortgagee in possession under a foreclosure to which such judgment creditor was not a party. Braiiiard v. Cooper, 10 N. Y. 356; Reynolds v. Park, 53 N. Y. 36. Where a senior mortgagee has foreclosed without making a junior mortgagee a party to such foreclosure suit, the junior mortgagee may redeem by paying the mortgage debt, principal and interest, without paying the costs of the previous foreclosure. A person is not affected by a foreclosure suit to which he is not a party, and stands in the same relation to it as if there had been no .suit. Gage v. Brewster, 31 N. Y. 218 ; Mes- singer v. Messmgcr, 12 Week. Dig. 368; appeal dismissed, 89 N. Y. 604. A purchaser at a tax sale is not affected by fore- closure of a subsequent mortgage in an action to which he was not a party. Becker v. Howard, 66 N. Y. 6. A foreclosure is void as to the owner of half the equity of redemption in the mort- gaged premises, who was not made a party. Schriver v. Schriver, 86 N. Y. 575. A purchaser at a foreclosure sale under a mortgage made by the husband and wife where the wife was not a party to the suit, acquires the property incumbered by a contingent dower interest, and an assignment of mortgage so far as unforeclosed upon such interest. Ross v. Boardjnaji, 22 Hun, 527. If the proceedings are irregular, the purchasers acquire the interest of the owner of the equity and persons having incumbrances who are parties. Vroom V. Ditmas, 4 Paige, 531 ; Vanderkenip v. Sheldon, 11 Paige, 28; Seward v. Huntington, 94 N. Y. 104. As to persons having liens who are not parties, he acquires the rights of an assignee of the mortgagee. Gage v. Brewster, 31 N. Y. 218; Reynor v. Selmes, 52 N. Y. 579; Wmslow v. Clark, 47 N. Y. 261 ; Dunning v. Fisher, 20 Hun, 178. When one who holds an assigned mortgage as collateral security makes the assignor and mortgagee parties under the general allegation of interest, all their rights are cut off by a sale. Bloomer v. Stiirges, 58 N. Y. 168. As to the 424 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. effect of a decree in peculiar cases see Darwin v. Hatfieldy 4 Sandf, 168 ; Weeks v. Tomes, 16 Hun, 349, affirmed, 76 N. Y. 601 ; Fuller v. Scribner, y6 N. Y. 190. A title derived from a foreclosure sale is not defective for failure to record an assignment of the mortgage to the party who foreclosed, for an assignment may be made by delivery only, and the judgment of the court is conclusive that there was such delivery. Fryer v. Rockefeller, 63 N. Y. 268. If, for any reason, the title of the mort- gagor is not subject to a prior mortgage, the purchaser's is equally free. Westbrook v. Gleason, 79 N. Y. 23. One who took an absolute deed as security for advances, and by arrangement took possession and appropriated the rents and profits which should have been applied to the mortgage, and on foreclosure bought in the premises, held, a trustee in his own wrong, and that the debtor was entitled to redeem, even though the debtor did not defend. Bennett v. Austin, 81 N. Y. 308. Upon the foreclosure of a mortgage which contained no cove- nants, it was held that the relation of mortgagor and mortgagee was extinguishhed by the sale, and the latter, being thereafter under no duty to protect the title, might obtain an outstand- ing and paramount title to the premises. Jackson v. Littell, 56 N. Y. 108. A mortgagee who purchased at a foreclosure sale, fraudulent as to infant owners, will be charged as a mort- gagee in possession if he was privy to the fraud. McMurray v. McMurray, 66 N. Y. 175. The rules regulating the sale, and rights and Hability of the purchaser are discussed under § 1678, and as to obtaining possession after sale, under § 1675. Where an assignee in bankruptcy, who held an interest as such, was a party to a foreclosure as an individual, the complaint containing the usual allegation, that he had or claimed an interest in the premises, held, that the judgment foreclosed the interest he had as assignee in bankruptcy. Landon v. Townshend, 44 Hun, 561. The dower right of the wife of a mortgagor is not cut off by a foreclosure of a purchase-money mortgage in an action to which she was not a party. Campbell v. Ellwanger, 81 Hun, 259, 30 Supp. 792. But a judgment in foreclosure cannot be amended after sale by inserting the deficiency clause. Union Trust Co. v. Schliep, 59 St. Rep. 867, 28 Supp. 382, 31 Abb. N. C. 52, 23 Civ. Pro. R. 264. Where one of the defendants who owns an undivided interest FORECLOSURE. 425 Art. 7. Judgment, the Character and Extent of Relief. in the property dies pending foreclosure, and her heirs or de- visees are not brought in as parties, entry of judgment against her is without authority, and her interest is not affected. Ste- phens V. Humphreys, 73 Hun, 199, 56 St. Rep. 70, 25 Supp. 946. Where the owner of the equity of redemption did not appear and the demand of the complaint was that the premises be sold and the mortgagor and his wife, and all claiming under them sub- sequent to the commencement of the action, be barred and fore- closed, held, that the owner of the equity was concluded, and that the title under a purchaser on a foreclosure sale was good. Mygatt V. Somerville, 54 St. Rep. 269, 23 Supp. 808. It seems that if the purchaser of real property subject to an existing mortgage intends to assert title to fixtures which he has erected upon the mortgaged premises, by virtue of a special agreement, he is bound to do so in the foreclosure action. Mc- Faddcn v. Allen, 134 N. Y. 489, 48 St. Rep. 324. It is also held in Helck v. Reinheimer, 105 N. Y. 470, that where defendants set up a claim of paramount title and the issues raised in the answer are litigated and decided without objection, defendants will be bound by the judgment, and cannot object on appeal that the question raised by the answer could not be litigated in a fore- closure action, and in Goebelv. Iffla, in N. Y. 170, 19 St. Rep. 105, it is held that while prior incumbrancers are neither neces- sary nor proper parties to an action of foreclosure, and when made such under a general allegation they claim the interest as a subsequent purchaser, incumbrancer or otherwise, a decree will not affect them ; yet, if instead of demurrer or answer, the defend- ant litigates the question and the judgment goes against him, he will be estopped from afterwards setting up his interest against the judgment in a foreclosure action. Crovnvell v. MeLean, 123 N. Y. 475- Where a testatrix having power of sale with certain trusts was made defendant, but the persons entitled were not made par- ties, it was held that defendant only acquired the title of the parties to foreclosure and that the fee being vested in the heirs at law, had not been divested. Noonan v. Brenneniann, 54 N. Y. Supr. 337; S. C. 8 St. Rep. 91. Where a purchaser at a tax sale subsequent to the delivery of the mortgage claimed title by vir- tue of such sale and tax deed, no notice having been given to the mortgagee of such sale as required by law, it was held that plain- 426 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. tiff's lien was superior to the claim of the purchaser. Ruyter v. Nickes, 22 St. Rep. 200. As to the effect of the recording act as regards parties to a foreclosure and effect of the judgment thereon, see Slattcry v. Schwaiinccke, 118 N. Y. 543, afHrming 44 Hun, 75. Where there is a claim for deficiency against several defendants and a waiver of claim therefor as to all but one defendant, it is, in effect, an amendment of the complaint and the judgment in such action is not an adjudication as to the liability of the defendants as to whom the waiver was made. National Hiidsofi River Batik V. Reynolds, 57 Hun, 307 ; s. c. 10 N. Y. Supp. 669, 32 St. Rep. 124. A provision directing a sale of the several lots covered by a mortgage in the inverse order of alienation does not settle relative rights and equities of the parties in respect to their priorities as subsequent incumbrances, where no such issue has been raised in the pleadings and prior proceedings. Biirchell w. Osborne, 119 N. Y. 486; S. c. 29 St. Rep. 788. A party who has an interest in real estate prior to that of a mortgagor is not affected by the judg- ment in a suit for foreclosure of the mortgage though made a party under the allegation in the complaint that he has or claims some interest subject to the lien of the mortgage. Ruyter v. Reid, 12 1 N. Y. 498. The apparent owner of the equity of redemption should be a party and served with process in order to cut off the right of subsequent incumbrancers or persons holding through unrecorded conveyances from him although such an omission may not affect a grantee by unrecorded deed who is himself a defend- ant and properly served ; the wife of the latter, not being a de- fendant, will be unaffected by the decree and her dower will not be cut off. Kursheedt v. Union Dime Savings Inst, of N. F. 118 N. Y. 358 s. c. 28 St. Rep. 933. Where a mortgage existed upon a farm belonging to defend- ants' mother, on which he had planted crops, and he was not a party to the foreclosure; Jield, his rights as to the growing crops were not affected. St. John v. Swain, 38 St. Rep. 784. A state- ment in a referee's report that plaintiff is entitled to judgment of foreclosure and .sale and for a deficiency, if any, is a sufificient direction for the entry of judgment. Albany County Savings Bank V. McCarty, 71 Hun, 227, 54 St. Rep. 577, 24 Supp. 991. Where a judgment did not expressly authorize the referee to execute a deed to the purchaser, but provided that the purchaser should be entitled to possession on production of his FORECLOSURE. 427 Art. 7. Judgment, the Character and Extent of Relief. deed, and that the mortgagor and the receiver should join in the deed, it was held that a claim that the referee had no authority under the judgment to execute the deed was untenable; that such authority was to be understood from the language of the judgment, and that as the court below had sanctioned the giving of the deed and thus construed its judgment, no ground of complaint on that account remained. Fanners Loan & Trust Co. v. Banks, etc. TelcgrapJi Co. 119 N. Y. 13. The proceeds of a sale under a mortgage given by the mort- gagor to secure various debts are paid over to the creditor, not as a voluntary payment, but by operation of law, and in the absence of directions given in the security, their application, when several obligations are secured by the mortgage and their proceeds will not pay all, is to be made by the court in accord- ance with equitable principles. Orleans Co. National Bank v. Moore, 112 N. Y. 543. A foreclosure operates to cut off the rights of all subsequent parties who were made parties to the action. Johnson v. Snell, 34 St. Rep. 177; citing Smith y. Gar- diner, 42 Barb. 356. A purchaser at a real estate foreclosure sale which is defective and void as against the owner of the equity of redemption, because he was not made a party, becomes an assignee of the mortgage, and if he lawfully enters into possession of the land, becomes a mortgagee in possession. Townshend v. Thomp- son, 139 N. Y. 152; cited Croner v. Cotvdrey, 139 N. Y. 471. Although a sale in foreclosure be a nullity as to the owner of the equity of redemption, who is not made a party to the action, it is not void as a whole, but the purchaser acquires all the rights of the mortgagee, and if he thereafter goes into possession with the consent of the owner of the equity of redemption, he becomes a mortgagee in possession, and a purchaser at a sale in fore- closure, given after the one first foreclosed, cannot maintain eject- ment against him. ]Vi)ig v. Field, 35 Hun, 617. It seems that after a mortgage is foreclosed by an admin- istrator after proper service on all the defendants, the judg- ment and sale on such foreclosure cannot be assailed on the ground of any irregularity or even want of jurisdiction, in grant- ing the letters of administration to plaintiff. Abbott v. Curran, 98 N. Y. 665. Foreclosure and sale of a mortgage upon a lease containing a covenant to pay rent, expressed as binding the les- sees and their assigns, does not impair the covenant to pay rent. 428 FORECLOSURE. Art. 7. Judgment, the Character and Extent of Relief. but the covenant runs with the land and binds the purchaser. Pardee v. Steward, 37 Hun, 259. The ordinary provision in a judgment of foreclosure, that out of the moneys arising from the sale of the mortgaged property the referee retains the amount of any lien or liens for taxes or assessments, does not estop a pur- chaser from questioning the validity of the tax sale. Simms v. Vought, 94 N. Y. 654. A judgment in foreclosure is ineffectual to cut off an apparent lien where the order of publication of the summons against the lienor was granted upon an insufficient affidavit, and a purchaser will not be compelled to accept title thereunder although it is proved in the case that such lien has, in fact, been discharged. Argall v. Bac/irae/i, 18 Week. Dig. 267. A judgment in foreclosure does not bar a tax sale purchaser who is not a party. Becker v, Howard, 66 N. Y. 5. Hence, a purchaser at a tax sale, subsequent to the mortgage, is a proper party to the foreclosure. Roosevelt Hospital \. Dowley, 57 How. 489. The owner of a half of the equity of redemption was not made a defendant. Held, that the foreclosure was void as to him and his assigns, and they had twenty years to bring suit to gain possession. Schrh'erv. Schriver, 86 N. Y. 575, affirming 12 Week. Dig. 328; s. c. 13 Week. Dig. 436. Sub. 3. Motion to Vacate Judgment and Appeal. Defendant's motion to set a judgment in foreclosure aside will not be granted as a favor, where he shows no defence or merits, but relies on merely techncial irregularities. White v. Coulter, i Hun, 357; reversed in part, 59 N. Y. 629, without passing on this point. Where, after judgment in foreclosure, the debtor paid large sums to plaintiff's attorney, who divided them with one of the plaintiffs, who were trustees, without the knowledge of the others, the trust fund receiving no moneys, held, that the judg- ment should not be set aside or leave given to put in a supple- mental answer setting up usury, nor should credit be given on the judgment. Stout v. Rider, 12 Hun, 574. In case of railroad mortgage, where motion was made to vacate judgment on the ground it was more favorable to plaintiff than was asked in the complaint, it was denied. Peck v. N. V. cr N. J. R. R. Co. 85 N. Y. 246, dismissing appeal from 22 Hun, 129. But a tenant of the mortgagor may be allowed to come in and defend on the ground, after judgment and sale, that the mort- ^/f FORECLOSURE. 429 Art. 7. Judgment, the Character and Extent of Relief. gagor is the real owner of the mortgage, and the action is merely- brought to dispossess such tenant. Read v, Stokes, 5 Week. Dig. 438. As to all provisions relating to sale of the mortgaged premises, and as to a motion for resale, see § 1678. As to the proper practice where a substituted service on an infant was irregularly made, see Wood v. Kroll, 43 Hun, 328. Failure to publish notice of postponement of sale, pursuant to § 1678, is a mere irregularity, and does not constitute a jurisdictional defect ; it is ground for setting aside the sale upon seasonable application by a party to the suit, but is not available to a purchaser two years after confirmation of the sale, no objection having been made by any of the parties to the action. Bcckstein v. Schultz, 45 Hun, 191. Where the sole plaintiff dies after the report of the referee as to amount due, the entry of judgment thereafter in the name of the original plaintiff, and a sale without revivor by the personal representatives, are mere irregularities which will not defeat the title of the purchaser. Smith v. Joyce, 1 1 Civ. Pro. R. 257, citing Harrison v. Simons, 3 Edw. Ch. 416; Lynde v. C Don- ne/l, 21 How. 34; Hays v. ThotJias, 56 N. Y. 522. See, also, Minthorne v. Tompkins, 2 Paige, 102 ; Goelet v. Lansing, 6 Johns. Ch. 75, as to irregularities in sale and their effect. Failure to appoint a guardian ad litem for an infant defendant in foreclosure is an irregularity, but a judgment taken is voidable, not void. It may be opened on timely application, but the right will be lost by laches. Feitncr v. Hoeger, 15 St. Rep. 376, citing McMurray V. McMurray, 66 N. Y. 175. On appeal from an order directing the sale of mortgaged premises, appellant has his election to give an undertaking con- ditioned against waste and to pay for use and occupation or to pay any deficiency which may occur on the sale. Horton v. Childs, 1 1 Supp. 797. An undertaking on appeal in a foreclosure case against waste and for value of use, operates as a stay of pro- ceedings without a covenant to pay a deficiency. Werner v. Tuch, 29 St. Rep. 36; s. c. 119 N. Y. 632. An undertaking on appeal to the General Term from a judg- ment of foreclosure, which states that the sureties "do hereby, pursuant to the statute, jointly and severally undertake," that appellant "will pay all costs and damages which may be awarded against her on said appeal, not exceeding $500," and on affirm- ance or dismissal, pay the sum recovered or directed to be paid 430 FORECLOSURE. Art. 8. Sale and Manner of Conducting it. Art. 9. Judgment for Deficiency. by the judgment, constitutes merely a valid common-law agree- ment, and the words used are to be given their usual, ordinary significance, and have not the force and effect of statutory under- taking. The Concordia Savi?igs and Aid Assn. v. Read, 35 St. Rep. 222. Where a mortgagor has had his day in court and failed to offer any proof in support of his defence, a judgment recovered should not be set aside unless there is clear proof that the moving par- ties had suffered an injustice. Cook v. New Amsterdam Real Estate Association, 2 App. Div. 55. ARTICLE VIII. Sale and Manner in which it is Conducted. Rule 63. Rule 63. Mortgage and assignments to be filed or recorded before convey- ance — expense allowed in costs. Whenever a sheriff or referee sells mortgaged premises, under a decree or order, or judgment of the court, it shall be the duty of the plaintiff, before a deed is executed to the purchaser, to file such mortgage and any assignment thereof in the office of the clerk, unless such mortgage and assignments have been duly proved or acknowledged, so as to entitle the same to be recorded; in which case, if it has not been already done, it shall be the duty of the plaintiff to cause the same to be recorded, at full length, in the county or counties where the lands so sold are situated, before a deed is executed to the purchaser on the sale; the ex- pense of which filing or recording, and the entry thereof, shall be allowed in the taxation of costs; and, if filed with the clerk, he shall enter in the minutes the filing of such mortgage and assignments, and the time of filing. But this rule shall not extend to any case where the mortgage or assignments appear, by the pleadings or proof in the suit commenced thereon, to have been lost or de- stroyed. This subject of sale of real estate with the rules relative thereto, is treated under §§ 1677 and 1678, under chapter XI, where Rule 62, regulating sales in New York and Brooklyn, and Rule 67, requiring notice of application for stay, will be found. ARTICLE IX. Judgment for Deficiency. If there is no bond and no covenant to pay the money, and no pre-existing debt, the remedy is confined to the land. Gay- lord v. Knapp, 15 Hun, 87. The grantee in a deed taken merely as security, though he assumed an existing mortgage on the prop- FORECLOSURE. 43 1 Art. 9. Judgment for Deficiency. erty, held, not liable to the mortgagee for a deficiency on fore- closure. Root V. Wright, 84 N. Y. 72. A personal judgment for a deficiency cannot be rendered against a non-resident defendant, who neither appeared in the action nor had been served with pro- cess within this State. Schwmgcr v. Hickok, 53 N. Y. 280 ; Bartlett v. McNeil, 60 N. Y. 53. A married woman is not liable on a bond secured by a mort- gage on her separate estate where the loan was to her husband, and the bond does not charge her separate estate. McKeon v. Hagan, 18 Hun, 65; Life Asso. of America v. Lessler, 19 Alb. L- J. 399- But see chap. 361, Laws of 1884, as to right of mar- ried women to contract with same power as if sole. But previous to this act it was presumed that where a married woman received money on a promise to repay it, although the bond did not charge her separate estate, the money was borrowed for the benefit of such estate. Williamson v. Duffy, 19 Hun, 312. Contra, Mack V. Austin, 29 Hun, 534. A wife is not liable to pay a deficiency where the claim is based upon the assumption contained in the deed conveying the property to her, of which she had no knowl- edge, and which was made as a gift from her husband to her. Munson v. Dyett, 56 How. 333. Where a loan is made to hus- band and wife jointly on their joint property, a judgment for de- ficiency may be entered against the wife, and such judgment will be deemed final and only reviewable on direct appeal. Bert v. Palmer, 22 Week. Dig. 282, A married woman who takes a conveyance assuming the payment of a mortgage is liable, though she has no other property. Casliman v. Henry, 75 N. Y, 103. Contra, Manhattan Life Ins. Co. v. Stover, 14 Hun, 153. A plain- tiff who omits to take judgment as he is entitled, should be held barred from leave to amend by a long delay, and the Court of Appeals will not review the General Term decision refusing leave. Grant v. Griswold, 21 Hun, 509; on appeal, 82 N. Y. 569. Where the judgment of foreclosure does not provide that a cer- tain defendant shall be Hable for a deficiency, an order upon the referee's report of sale directing such judgment is irregular. Day v. Johnson, 5 Week. Dig. 237. A grantee who has covenanted to pay a mortgage is not bound to pay a deficiency if he has been evicted by paramount title. Dunning v. Leavitt,%^ N. Y. 30. Where the mortgagor sells the equity subject to the mort- gage, and the purchaser assumes the payment as a portion of the 432 FORECLOSURE. Art. 9. Judgment for Deficiency. purchase money, the latter becomes personally liable for the pay- ment of the debt in the first instance, and if the mortgagor is compelled to pay it, he can recover it from the purchaser of the equity. Halsey v. Reed, 9 Paige, 447 ; Marsh v. Pike, 10 Paige, 595 ; Blyer v. Mulholland, 2 Sandf. Ch. 478 ; Ferris v. Crawford, 2 Den. 595; Cornell v. Prescott, 2 Barb. 16; Thayer v. Marsh, 11 Hun, 501 ; Russell v. Pistor, 7 N. Y. 171 ; Hartley v. Harrison, 24 N. Y. 170; Comstock v. Drohan, 71 N. Y. 9. So also, as to the grantee of a grantee. Marsh v. Pike, 10 Paige, 595. It was held in 71 N. Y. 9, supra, that where the grantee of the premises was not made a party to the action, the mortgagor was not bound to give him notice in order to hold him for deficiency. See, also, Dreivry v. Clark, 16 How. 424. But where the plaintiff makes the mortgagor a party for the purpose of obtaining a judgment for deficiency against him, the surety may insist that the principal debtor shall be made a party. Bigelozv v. Bush, 6 Paige, 343. One who accepts a deed in which he assumes the payment of a mortgage given by his grantee becomes the principal debtor. Ranny v. Mc Mullen, 5 Abb. N. C. 246; Wales v. Sherwood, 52 How. 413. Where a grantee assumes payment of a mortgage as part of the consideration, he becomes liable to the mortgagee, but there is no liability to his grantor. Upon acceptance of the deed the grantee becomes the principal debtor, and the grantor his surety for the payment of the mortgage debt ; if the latter pays the amount, he is entitled to be substituted to the rights of the mortgagee and has his remedy against his grantee. If the grantor dies before foreclosure, his heirs, and not his administrators, succeed to his rights, the heirs being the parties injured by the breach of the covenant to assume. Ayres v. Dixon, 78 N. Y. 318. Where there is a covenant in a deed that the grantee shall pay a mort- gage executed by the grantor, the latter becomes a surety, and extension of time of payment by the holder discharges the grantor. Calvo V, Davies, 73 N. Y. 211 ; Marshall v. Davies, 78 N. Y. 415. And if the mortgagee releases the grantee of the mortgagor, the latter is discharged, Paine v. Jones, 76 N. Y. 274. Where the court finds that the plaintiff is entitled to a personal judgment for a deficiency against a grantee of the premises who is made defend- ant, but plaintiff enters a judgment without relief against such defendant for deficiency, he thereby discharges him from such FORECLOSURE. 433 Art. 9. Judgment for Deficiency. liability. Mutual Life Ins. Co. v. Hoyt, 15 Week. Dig. 489. In an action for foreclosure if the name of the principal debtor is stricken out by order of the court, and judgment against him for deficiency expressly waived by such order, judgment for deficiency cannot be ordered against the surety. Hencken v. James, 16 Week. Dig. 33. A conveyance expressed to be subject to a mort- gage, but without any stipulation that the grantees shall pay it, leaves the grantor principally liable for deficiency. Briisse v. Paige, I Keyes, 87; Tillotson v. Boyd, 4 Sandf. 516; Munnay v. Smith, I Duer, 412. If there are words in the deed importing that the grantee is to pay the mortgage to which the land is subject, he is deemed to have entered into an express agreement to do so by the acceptance of the deed ; no precise or formal words are necessary if the intent appears. Curtis v. Tyler, 9 Paige, 432 ; Halsey v. Reed, 9 Paige, 446; Marsh v. Pike, 10 Paige, 595; Vail v. Foster, 4 N. Y. 312; Trotter v. Hughes, 12 N. Y. 74; Ricard v. Sanderson, 41 N. Y. 179; Lawrence Y. Fox, 20 N. Y. 268. The purchaser of a mere equity, without any words in the grant importing that he assumes the payment of the mortgage, does not bind himself personally to pay the debt, there is no implied promise or covenant. If, however, in the conveyance there are words importing that the grantee will pay the debt, he is deemed to have entered into an express agreement to do so, although he does not sign or seal the instrument. The acceptance of a deed containing such language is evidence of the most satisfactory kind that he has promised to do what the deed says he is to do. The insertion of words to the effect that it is subject to a mortgage of a specified amount which has been estimated as part of the purchase money and deducted therefrom does not bind the grantee personally. Collins v. Rowe, I Abb. N. C. 97; Belmont v. Coman, 22 N. Y. 438. Otherwise if the mortgage debt formed part of the consideration of the pur- chase price and was to be paid by the purchaser or he retained the amount. Dorr v. Peters, 3 Edw. Ch. 132; Smithy. Tusslotv, 84 N. Y. 660. Under a conveyance by which the grantee assumes no personal liability, the fact that the grantee takes possession and receives the rents and profits does not make him liable for deficiency. Argallv. Pitts, 78 N. Y. 239. A grantee of the equity, subject to a mortgage, is not liable if his grantee was not so liable. [Special Actions — 28.] 434 FORECLOSURE. Art. 9. Judgment for Deficiency. Smith V. Cross, 16 Hun, 487; Cashman v. Henry, 75 N. Y. 103; Vrooman v. Turner, 69 N. Y. 280. A purchaser of the equity from one not personally liable to the holder of the mortgage incurs no liability by the insertion of a clause assuming payment of a mortgage as part of the consideration. Smith v. Cross, 16 Hun, 487; Munson v. Dyett, 56 How. 333. A clause in a second mortgage, by which a mortgagee covenants and agrees to pay a prior mortgage, does not render him personally liable to the prior mortgagee for the first mortgage debt. The stipulation, in such a case, differs from a similar stipulation in a conveyance, in that it is not a promise made by the mortgagee to the mortgagor for the benefit of the prior mortgagee, but is a promise for the benefit of the mortgagor only, to protect his property by advanc- ing money to pay his debts. Garnsey v. Rogers, 27 N. Y. 233. It does not matter, as regards the personal liability of one who has assumed to pay the mortgage debt, that he took the deed merely as security for an indebtedness OAving to him by the firm of which the mortgagor was a member. Rieard v. Sanderson, 41 N. Y. 179. See Campbell v. Smith, 8 Hun, 6; s. c. 71 N. Y. 26. After a mortgagor had conveyed the premises, without reference to the mortgage and for full value, the mortgage was foreclosed and the land sold for more than the amount due on the judgment. No note or memorandum, or report of the sale, was made. The purchaser paid no part of his bid and the sale was abandoned, but the purchaser thereafter obtained a conveyance from the mort- gagor's grantee and also paid the amount called for by the fore- closure judgment, and received an assignment thereof and of the bond, and then, by leave of the court, brought suit upon the bond. Held, that the foreclosure sale, even if binding upon the plaintiff therein, did not affect the rights of defendants and furnished no defence, as they were bound to pay the bond and could not ask to have the land sold to discharge the debt ; they were no way damaged and acquired no equities by reason of the failure to complete the sale; that it was not essential for plaintiff to set up his equities in his complaint ; he had a right to sue simply as assio-nee of the bond and to prove his equities in answer to any defence sought to be established by defendants. Wadsworth v. Lyon, 93 N. Y. 201. Where land is conveyed subject to a mort- gage, the payment of which is expressly assumed by the grantee, and the mortgage is foreclosed in an action to which such grantee FORECLOSURE. 435 Art. 9. Judgment for Deficiency. is not a party, and a judgment for deficiency is entered against the mortgagor, the latter is entitled to recover the deficiency of his grantee without deduction of the foreclosure costs; he need not obtain leave of the court to sue. Comstock v. Drohan, 71 N. Y. 9. A person who guarantees the payment of the mortgage debt either in the assignment of the mortgage to plaintiff, or otherwise, is a proper party to the action, and judgment can be rendered against him for deficiency. Bristol v. Morgan, 3 Edw. Ch. 142; RtisJimorc v. Grade, 4 Edw. Ch. 84. One who, on assigning a mortgage, guarantees payment thereof, by due foreclosure and sale, may be joined as defendant in foreclosure and a judgment for deficiency had against him. Vanderbilt v. Schreycr, 91 N. Y. 392. A person who has guaranteed the collection of the mort- gage debt is a proper party, but in such case the judgment should provide that no execution should issue as against him until an execution against the parties primarily liable has been returned unsatisfied. Leonard v. Morris, 9 Paige, 90 ; Harlem Savings Bank v. Miekelshirgli, 57 How. 106. It has also been held that a person who covenanted that a mortgage was due and collectible was a proper party. Curtis v. Tyler, 9 Paige, 432. Where a mortgagor conveys premises subject to a mortgage, which the purchaser, assumes and agrees to pay, and an action of foreclosure is brought, and the mortgagee, for a valuable consideration, stipu- lates not to apply for judgment for such deficiency against the purchaser, held, that from the time of this discharge the mort- gagee was bound to respect the rights of the original mortgagor as surety. He ceased to have any right of action against such mortgagor, and the mortgagor ceased to be liable. Knobloek v. Zschivetzke, i St. Rep. 238. Where a deed contains no assump- tion of a mortgage debt or agreement to pay it, parol proof of such a contract does not contradict the deed, and is competent to establish the liability of the grantee to pay such debt. Peet v. Kent, 5 St. Rep. 134. Land was purchased for the benefit of an association, but title taken in the name of an individual, who gave back a mortgage. The receipt for the money loaned specified it was for the associa- tion. Held, that the mortgagor should be exonerated from the payment of any deficiency arising on the mortgage. Bozvman v. Johnson, 6 St. Rep. 22. One who purchases land subject to a 436 FORECLOSURE. Art. 9. Judgment for Deficiency. mortgage makes the land thereby the primary fund for the pay- ment of the mortgage debt, and this is so although the mortgage contains a covenant on the part of the grantee to pay the mort- gage debt. The covenant is to indemnify the grantor against the contingency that the land may not bring enough to pay such debt. On conveyance by a mortgagor subject to a mortgage, the meaning of the transaction between the parties is, the land shall pay the mortgage debt in exoneration of the personal liabil- ity of the mortgagor on his bond, and in equity on such a con- veyance, the land is treated as the debtor and the mortgagor as surety for the mortgage debt. If the deed, in addition, contains a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund. In re Wilbur v. Warren, 104 N. Y. 192. A personal obligation on the part of the grantee is not to be inferred from a statement in his deed that it is subject to a mortgage, and that the amount thereof "forms part of the consideration and is deducted therefrom." Equitable Life Ass. Co. V. Bostwick, 100 N. Y. 628. The plaintiff cannot make the heirs or devisees of a deceased mortgagor parties, they having no interest in the mortgaged premises, for the purpose of obtaining a judgment for deficiency which will bind the real estate of the decedent. Leonard v. Morris, 9 Paige, 90. But the personal representatives of a deceased mortgagor may be made parties for the purpose of obtaining a judgment for the payment of deficiency out of the assets in their hands in due course of administration. Collins Petition, 6 Abb. N. C. 227; Mitchell v. Boxvne, 63 How. I ; Lockwoodv. Faweett, 17 Hun, 146; Glacius v. Fogel, 88 N. Y. 439. As to practice to reach the assets, if sufificient, see Williams V. Eaton, 3 Redf. Surr. 503. Contra.^ Rhodes v. Evans, Clarke's Ch. 168. Where more than one person is liable personally for the pay- ment of the mortgage debt, some as principal and others as sure- ties, the judgment should provide for execution for the deficiency against the defendants in the order in which they are liable. Curtis v. Tyler, 9 Paige, 435; Luce v. Hinds, Clarke's Ch, 453; Weed V. Calkins, 24 Hun, 582. For directions as to form of judgment where surety is sued in first instance for deficiency, see J^ones v. Steinberg, i Barb. Ch. 250; Rapelyc \. Anderson, 4 Hill, 472; Goldsmith v. Brozvn, 35 Barb. 484; Farnham v. Mallory, 5 Abb. (N. S.) 380. Where II FORECLOSURE. 437 Art. 9. Judgment for Deficiency. payment was guaranteed by an assignor in an assignment of a mortgage, judgment against him for deficiency is proper. Officer V. Burchell, 44 Supr. Ct. 575. Where there is no answer, and complaint does not ask judgment for deficiency, it cannot be granted. Bullwinkcr v. Ryker, 12 Abb. 311 ; Simonson v. Blake, 20 How. 484; French v. New, 20 Barb. 484. The right to grant a personal judgment against the mortgagor or his surety, or other party personally liable for his debts, does not extend to cases where the complainant had no right to come into court to fore- close the mortgage as against the interest of any one in the mort- gage premises, or any part thereof. Mann v. Cooper, i Barb. Ch. 185. It seems that an obligor in a bond, though not joining in the mortgage, may be made defendant and held liable for deficiency. Thorn v. Newby, 59 How. 120. A referee's report of sale, which shows that the apparent deficiency was wholly caused by an unauthorized allowance to the purchaser, is treated as not report- ing any deficiency. Bache v. Doscher,A,\ Supr. Ct. 150, affirmed, 6'j N. Y. 429. A guarantor of a mortgage held released from a liability coming from a deficiency on a resale which had been so conducted that the purchaser on the first sale was relieved for irregularity in the resale. Riggs v. Boucicault, 20 Week. Dig. 184. In order to hold a defaulting purchaser liable for a de- ficiency on a resale, the second sale must be made on the same terms as the first. Riggs v. Pursell, 74 N. Y. 370. Where an assignee for benefit of creditors is joined as a defendant in fore- closure of a mortgage assumed by the assignors, judgment for deficiency should be rendered against the assignors, not against the assignee. Payne v. Smith, 28 Hun, 104. The act of a cham- berlain or treasurer in foreclosing a mortgage without order of the court and buying in the property for the benefit of the bene- ficiaries, does not render him personally liable for deficiency though the property is worth less than the mortgage. Chester- man V. Eyland, 8 Abb. N. C. 92; s. C. 81 N. Y. 398, affirming 17 Hun, 520. Where, pending an action to foreclose a mortgage and for judg- ment again.st the mortgagor and a guarantor for any deficiency which might arise on the sale, the guarantor dies, the court has no power to order a judgment for a deficiency against him as of a date prior to his death, nunc pro tunc, without bringing in his personal representatives. Grant v. Griswold, 21 Hun, 509; 438 FORECLOSURE. Art. 9. Judgment for Deficiency. appeal dismissed, 82 N. Y. 569. One liable for deficiency was held not discharged because the time for completing the sale was extended, and a resale was subsequently ordered without proceeding against the original purchaser for contempt to compel him to complete his purchase, because it did not appear that the purchaser was personally responsible and that his bid would have been enforced ; nor that, if the resale had been ordered immediately, the premises would have brought more ; further, that there was no fraud and no request that the pur- chaser should be proceeded against, and that a plaintiff in fore- closure has his election to compel the purchaser to complete his purchase or to apply for a resale. Goodzvin v. Simonson, 74 N. Y. 133. A mortgagee cannot have judgment for deficiency till after sale — Loeb v. Willis, 22 Hun, 508 — and the amount of defi- ciency must be ascertained before judgment is docketed. De Agreda v. Mantel, i Abb. 134. Deficiency is ascertained as against the mortgagor by deducting from the proceeds all taxes and other liens, and treating balance as net proceeds. Marshall V. Davies, 78 N. Y. 414. Lack of formal order of confirmation is an irregularity for which judgment will not be set aside where the proceedings are conceded to have been correctly taken. Bick- zvell v. Byrnes, 23 How. 486; Moore v. Shaw, 15 Hun, 428; appeal dismissed, ']'] N. Y. 572. It was formerly held otherwise. Bank of Rochester v. Emerson, 10 Paige, 115; Hanover Ins. Co. V. Tomlinson, 3 Hun, 630. But there should be an ex parte order confirming report, to become absolute eight days after notice of entry and filing. Bache v. Doschcr, 41 Supr. Ct. 150, affirmed, 67 N. Y. 429. It is the better practice for a defendant who is not liable for a deficiency, upon the facts alleged in the complaint, and who has not assumed the mortgage, to move to vacate so much of the interlocutory judgment as holds him so liable, but the court may correct such an error by refusing to confirm the referee's report, and refusing judgment and execution against such defendant. Argallw. Pitts, 78 N. Y. 239. Leave to bring action against guarantors for deficiency was granted. Kane v. Prentice, 13 Week. Dig. 361 ; McKernon v. Robinson, 23 Hun, 289, affirmed, 84 N. Y. 105. But it is a matter of discretion. Equitable Life Ins. Society v. Stevens, 63 N. Y. 341. For the rule in a peculiar case as to entry of judgment for deficiency, see * FORECLOSURE. 439 Art. 9. Judgment for Deficiency. Sicwert v. Hamel, 33 Hun, 44. The statute authorizing judgment for deficiency in actions for foreclosure was enacted to save neces- sity for actions at law, to allow one court to dispose of the whole subject. Thome v. Newly, 59 How. 120; Eqtiitable Life Ins. Co. V. Stevens, 63 N. Y. 341 ; Sco field \. DoscJier, 72 N. Y. 491. Where a judgment adjudges a defendant to pay any deficiency which may arise and one is reported, an execution may issue for such deficiency against the defendant named without further application to the court or notice to defendant and without notice of confirmation of the report. Hawley v. Whalen, 46 St. Rep. 512, 19 Supp. 521. Nor as against such defendant is it necessary to enter an order confirming the report. Taylor v. Derrick, 46 St. Rep. 583, 19 Supp. 785. A deficiency judgment may be entered under § 1627, although there may have been no sale of the premises in an action in which it is rendered, by reason of the sale of the premises pending such action, in an action to foreclose a prior mortgage, if the proceeds of such sale are not sufficient to satisfy the second mortgage. Frank v. Davis, 29 Abb. N. C. 294, reversing 61 Hun, 496,41 St. Rep. 292, 21 Civ. Pro. R. 374, 16 Supp. 369. The legatee of a grantor of a mortgage may be wholly liable for a deficiency to the extent of the property he receives from the grantor's estate. Collier v. Miller, 62 Hun, 99, 42 St. Rep. 66, 16 Supp. 633. An assignee of a judgment in foreclosure may sue to recover a deficiency thereon without first obtaining leave of the court, the prohibition of § 19 13 applying only to the original parties to the action. Knapp v. Valejitinc, 67 St. Rep. 582, 24 Civ. Pro. 331, 32 Supp. 712. Where the grantees in a deed in which they assumed part pay- ment of a mortgage were non-residents of the State and not per- sonally served with process in a foreclosure suit, it was held that they could not in that action be charged with the deficiency. Blass V. Terry, 87 Hun, 563, 68 St. Rep. 378, 34 Supp. 475. In foreclosure cases, the question of liability for deficiency must be determined by the judgment. Wager v. Link, 134 N. Y. 122. The provisions of § 1627, relating to judgments for deficiency ari.sing upon a sale, refer to such a sale as the courts in this State are authorized to order. Clark v. Simmo7is, 55 Hun, 176. In the absence of a covenant or agreement to that effect, the grantee of lands does not assume a personal obligation to pay existing incum- 440 FORECLOSURE. Art. 9. Judgment for Deficiency. brances. Smith v. Cornell, iii N. Y. 554; Belmont v. Cowan, 22 N. Y. 438 ; Equitable Life Ass. Co. v. Bortwick, 100 N. Y. 629. But if the purchaser of part of mortgaged premises assumes the payment of the entire mortgage, he becomes the principal debtor and is bound to protect the portion not purchased from the lien of the mortgage. Wilcox v. Campbell, 106 N. Y. 325 ; S. C. 8 St. Rep. 885. Foreclosure of a mortgage is simply in rem, and if the instru- ment to which the mortgage is collateral is unsealed, no personal judgment can be had where the Statute of Limitations is pleaded and had run against the application. Hulbert v. Clark, 57 Hun, 558; S. C. 33 St. Rep. 354. A judgment for deficiency may be enforced by an assignee of such judgment without obtaining leave to sue thereon, and although the mortgagee has realized more than the debt by sell- ing the land which he bought at the foreclosure sale. Schultz v. Mead, 8 N. Y. Supp. 663 ; s. C. 29 St. Rep. 203. A judgment for deficiency may be entered where the fore- closure is against lands in this State and an adjoining State with- out waiting the result of foreclosure in the other State. Clark V. Simmons, 55 Hun, 175; S. C. 8 N. Y. Supp. 74; S. C. 28 St. Rep. 738. Where there is no bond and no covenant to pay, there is no personal liability for a deficiency. Smith v. Rice, 12 Daly, 307; Gay lord v. Knapp, 15 Hun, 87; Mack v. Austin, 95 N. Y. 513- A covenant in a deed by which the grantee assumes and agrees to pay a mortgage upon the premises conveyed after it has come to the knowledge of the owner of the mortgage, and has been assigned and adopted by him as a security for his own benefit, is not revocable. A release therefor by the grantor, without the assent of the mortgage creditor, under such circumstances does not discharge the grantee. Gifford v. Corrigan, 117 N. Y. 257. A judgment for a deficiency must be recovered in order to sustain an action to enforce payment of the deficiency from land devised by the mortgagor. Lockwoodv. Fawcett, 17 Hun, 146. Where the original indebtedness is set forth in the complaint in an action to foreclose usurious securities, and is not denied, a personal judgment for the amount thereof, with legal interest, may be granted. Troy Carriage Co. v. Simson, 15 Misc. 424, 37 Supp. 846, 73 St. Rep. 58. FORECLOSURE. 44I Art. 10. Proceedings when Mortgage Debt is not all Due. ARTICLE X. Proceedings when Mortgage Debt is not all Due. §§ 1634, 1635, 1636, 1637. § 1634. When complaint to be dismissed on payment of sum due. Where an action is brought to foreclose a mortgage upon real property, upon which a portion of the principal or interest is due, and another portion of either is to become due, the complaint must be dismissed, without costs against the plaintiff, upon the defendant paying into court, at any time before a final judg- ment directing a sale is rendered, the sum due, and the plaintiff's costs. § 1635. Payment after judgment ; when proceedings stayed. In a case specified in the last section, if, after a final judgment directing a sale is rendered, but before the sale is made, the defendant pays into court the amount due for principal and interest, and the costs of the action, together with the expenses of the proceedings to sell, if any, all proceedings upon the judg- ment must be stayed; but, upon a subsequent default in the payment of princi- pal or interest, the court may make an order, directing the enforcement of the judgment, for the purpose of collecting the sum then due. § 1636. When part only of the property to be sold. Where the mortgage debt is not all due, and the mortgaged property is so cir- cumstanced, that it can be sold in parcels without injury to the interest of the parties, the final judgment must direct, that no more of the property be sold, in the first place, than is suflScient to satisfy the sum then due, with the costs of the action and expenses of the sale; and that upon a subsequent default in the payment of principal or interest, the plaintiff may apply for an order, directing the sale of the residue, or of so much thereof as is necessary to satisfy the amount then due, with the costs of the application and the expenses of the sale. The plaintiff may apply for and obtain such an order, as often as a default happens. P 1637. When the whole property may be sold. If, in a case specified in the last three sections, it appears that the mortgaged property is so circumstanced, that a sale of the whole will be most beneficial to the parties, the final judgment must direct, that the whole property be sold; that the proceeds of the sale, after deducting the costs of the action, and the ex- penses of the sale, be either applied to the satisfaction of the whole sum secured by the mortgage, with such a rebate of interest, as justice requires; or be first applied to the payment of the sum due, and the balance, or so much thereof as is necessary, be invested at interest, for the benefit of the plaintiff, to be paid to him from time to time, as any part of the principal or interest becomes due. The provisions relating to foreclosure and sale for installments not due at commencement of suit were held not to apply to an action for breach of a covenant for support accompanied by a mortgage ; the provision applies only to mortgages conditioned 442 FORECLOSURE. Art. lo. Proceedings when Mortgage Debt is not all Due. for the payment of money. Fergusoit v. Ferguson, 2 N. Y. 360. Where the mortgage contains a clause authorizing the mortgagee, upon non-payment of interest, to elect that the whole amount shall become due, and he has so elected, he cannot be compelled to waive the agreement. Nor is he estopped from asserting his right of election by commencement of suit prior to the thirty days, by setting up simply default in payment, or by receiving an installment of the principal. He has a right to file an amended and supplemental complaint and proceed in the action. Malcolm V. Allen, 49 N. Y. 448. In an action to foreclose where all the principal was not due, the decree stated the sum due and to become due. The mort- gagor paid the sum due and costs, which was accepted by the mort- gagee, and the next installment was also so paid. After the last installment fell due, the plaintiff, without notice to defendants, applied, by petition, for leave to proceed and sell the mortgaged premises, which was granted on the petition ; the original decree did not contain any provision for permission to proceed thereon and sell the premises in case of a default in payment of future in- stallments. Held, that the proceedings were irregular and void, and must be set aside; that plaintiff, by accepting payments, waived making the payment in court, and taking the decree in the usual form, if subsequent installments should fall due, the provisions of the statute should be strictly observed. Lo?ig v. Lyons, 54 How. 129. In pursuance of a judgment directing the sale of certain mort- gaged premises, consisting of ten vacant lots, or so much thereof as might be necessary to pay the amount due, the referee sold all the ten lots separately, although, on the sale of the ninth lot, enough had been realized to pay the amount due and all charges, and leave a surplus. The surplus having been paid to the cham- berlain, a second mortgagee filed a claim thereto. Held, that, although the sale of the tenth lot by the referee was unauthorized by the judgment, the owner of the equity of redemption was estopped from questioning the validity of the title acquired by the purchaser by reason of the acquiescence therein, and his fail- ure to object to the proceeding had for the distribution of the surplus. McBride v. Lewisohm, 17 Hun, 525. If the premises cannot be divided the decree should provide for the payment of the money to the mortgagee in payment of the FORECLOSURE. 443 Art. lo. Proceedings when Mortgage Debt is not all Due. mortgage debt, unless some safe course more beneficial to the mortgagor exists. Knapp v. Burnham, 1 1 Paige, 330. Where the mortgaged premises were in a city and laid out in lots, and only part of the amount secured due, running through a period of fourteen years, and the plaintiff tendered a stipulation to bid on the sale, in one parcel, the whole amount due, and to become due, and costs, so as to leave no deficiency, held, that the case came within the statute and within Suffern v. Johnson^ i Paige, 450, making it the duty of the court to decree a .sale of the whole premises in one parcel as most beneficial to all parties. Gregory V. Campbell, 16 How. 417. In an action to foreclose a mortgage, only a portion of which was due, the judgment provided for a sale and the appHcation of the proceeds to the satisfaction of the whole sum secured, that in case of deficiency in the proceeds to pay the amount reported as actually due, the defendants liable therefor should pay such de- ficiency, and that in case of a deficiency in the proceeds to pay the amount reported as secured and unpaid, that plaintiff might apply for execution at any time when such deficiency should become due, according to the conditions of the bond ; it was held that the judgment was correct and that no amendment thereof was necessary. Brewer v. Longnecker, 40 St. Rep. 614. Precedent for Petition to Sell Balance of Mortgaged Premises. SUPREME COURT — Ulster County. Jacob P. Hendricks, in his own right and as the general guardian of Jane Margaret DuBois, an infant, agst. Lorenzo DuBois and Christina DuBois, his wife; Moses W. Schepmoes and Anna E., his wife; Elijah Ellsworth and Sarah, his wife; Teunis H. Schepmoes, Andrew J. Story, ct al. To the Supreme Court of the State of New York : The petition of Jacob P. Hendricks, in his own right and as the general guardian of Jane Margaret DuBois, the above plaintiff, respectfully shows that a judgment of foreclosure and sale was entered in this action in the office of the clerk of Ulster county on the 6th day of April, 1875, on the report of the referee therein, whereby 444 FORECLOSURE. Art. lo. Proceedings when Mortgage Debt is not all Due. it appears that the sum of $999.22 was due on the bond and mort- gage, mentioned in the complaint, on April 3, 1875, and that the amount secured and not due was $2,213.67 ; that such proceedings were thereupon had upon such judgment, that under and by virtue thereof a portion of the premises, described in said judgment and in the complaint herein, sufficient for the payment of the amount reported due on said bond and mortgage and interest thereon, together with the costs and disbursements as settled by the clerk of Ulster county and entered in said judgment, was sold and brought the sum of $3,100, which said amount paid the costs and expenses on said foreclosure and a portion of the principal sum secured on said mortgage, having left unpaid on said mortgage the sum of $460.06 with interest thereon from March i, 1875; that the premises so sold was the lot firstly described in said judgment and complaint and was the whole of the premises described therein except the lot lastly described therein, which said lot so remaining unsold is bounded and described as follows: (Here insert description.) That under and by virtue of the terms of said mortgage the interest thereon was payable March i and September i of each year; that the interest due on the amount unpaid on said mortgage became due and payable September i, 1875, and remains due and unpaid; that no person has appeared in said action except the defendants De Graff & Busted, who have appeared by their counsel, J. M. Van Wagonen as their attorney; that none of the defendants are infants or absentees. Wherefore your petitioner prays that an order may be allowed in this action founded on said judgment directing a fur- ther sale of the lot hereinbefore described, under and pursuant in all respects to the said judgment, as will be sufficient to satisfy the amount due the said plaintiff with the costs of this petition and pro- ceeding, and as said lot is not capable of division, this petitioner prays that the whole of said lot may be sold and the proceeds be applied to the payment of such costs and so forth, and that the bal- ance be applied to the payment of the mortgage of the said plaintiff to the extent of such mortgage. Dated September 14, 1885. (Signature.) Precedent for Order. (Caption, usual form.) (Title as before.) On reading and filing the petition of Jacob P. Hendricks, the above plaintiff, by which it appears, among other things, that the sum of $460.06 remains unpaid on the decree of foreclosure in the above action with interest thereon from March i, 1875, after the appli- cation of all the proceeds of the sale of the premises sold under said decree, that interest on said sum of $460.06, from March i, 1875, became due and payable on September i, 1875, and still remains in default and unpaid; that all the premises described in said complaint and decree have been sold except a single lot, which said lot would be sold more advantageously by being sold in one parcel. Now, on motion of R. Bernard, plaintiff's attorney, ordered FORECLOSURE. 445 Art. II. Surplus Proceedings. that the residue of said mortgaged premises described in said com- plaint and judgment in this action remaining unsold, be sold under the direction of the referee heretofore appointed, for the payment of the amount remaining unpaid on said mortgage, to wit: — the sum of $460.06 and interest from March i, 1885, together with the costs of these proceedings, $35, under and pursuant in all respects and according to the terms of and direction for sale contained in said judgment. And it is further ordered that the said defendants and all persons claiming under them, or either of them, after the filing of the notice of the pendency of this action, be forever barred and foreclosed of all right, title and interest and equity of redemption of or in the said mortgaged premises so sold, or any part thereof. SAMUEL EDWARDS, Justice Supreme Court. ARTICLE XL Surplus Proceedings. § 1633. Rule 64. Sub. I. Rights of parties to surplus. § 1633. 2. Method of distributing surplus. Rule 64. 3. Costs and appeal from order in surplus proceedings. Sub. i. Rights of Parties to Surplus. § 1633. § 1633. Disposition of surplus. If there is any surplus of the proceeds of the sale, after paying the expenses of the sale, and satisfying the mortgage debt and the costs of the action, it must be paid into court, for the use of the person or persons entitled thereto. If any part of the surplus remains in court for the period of three months, the court must, if no application has been made therefor, and may, if an application therefor is pending, direct it to be invested at interest, for the benefit of the per- son or persons entitled thereto, to be paid upon the direction of the court. The surplus moneys realized on sale by advertisement must, by § 2404, be paid into the Supreme Court, and proceedings had under §§ 2405-2408 as to distribution. As to when surplus moneys which accrue from sale under foreclosure of a mortgage given by a decedent are to be paid into Surrogate's Court, see §§ 2798, 2799. As to the jurisdiction of the Surrogate and his powers and duties in such cases, stc Matter of Stilkvcll, 68 Hun, 406. Where a person has an equitable lien on the surplus, his proper course is to give notice to the master who makes the sale, or to file it with the clerk, or, if a referee has been appointed, he should present his claim to the referee. Dc Riiytcr v. Trustees of St. Peters C/mre/i, 2 Barb. Ch. 555. But it is said in Hiisted v. 446 FORECLOSURE. Art. n. Surplus Proceedings. Dakin, ly Abb. 137, and Kingw. West, lO How. 333, that as the rule now stands, the liens referred to are those which subject the estate to be sold without further intervention of the court, and that claims, however equitable, which have not matured into liens cannot be considered. See Mutual Life Ins. Co. v. Bowen, 47 Barb. 618. See the latter case questioned in Bergen v. Carman, 79 N. Y. 146, holding that, where a reference is ordered as to sur- plus moneys, a lien may be attacked on the ground of fraud, and it matters not whether the action is partition or foreclosure ; that this is the most convenient method for the disposition of claims in such cases. Citing Schafer v. Reilly, 50 N. Y. 61 ; Halstead v. Halstead, 55 N. Y. 442; McRoberts v.Pooley, 12 Civ. Pro. R. 139; Fliess V. Buckley, 90 N. Y. 288. The rights and equities of the lienholders or claimants are before the court, and as much the object of its care as those of the owner of the mortgage foreclosed. DeForest v. Farley, 62 N. Y. 628 ; Bcekinan v. Gibbs, 8 Paige, 511; Tutor V.Adams, 20 Hun, 131; Livingston v. Mildrum, 19 N. Y. 440. Contra, Meller v. Dooley, i Law Bull. 50; Union Dime Savings Bank v. Osley, 4 Hun, 657. The surplus of moneys derived from a sale under foreclosure, remaining after making the payments demanded in the judgment, belong to the mortgagor or owner of the equity of redemption, and not to the purchaser on the foreclosure sale. Day v. Town of New Lots, II St. Rep. 361. In case of surplus moneys arising on sale of lands of a decedent, they should be distributed ratably among all the general and judgment creditors of the deceased, and in such case, a general creditor has a right to be heard. German Savings Bank v. Sharer, 25 Hun, 409; Loucks v. Van Allen, ii Abb. (N. S.) 427. See § 2798, Code Civ. Pro. ; also White v. Poillon, 25 Hun, 69. And creditors must be paid before legatees. Clark's Case, 15 Abb. 227. Where both claimants to surplus are before the court, a final disposition of the controversy may be made. Clarkson v. Skidmore, 46 N. Y. 297. The lien of an attorney on a fund will be protected. Atlantic Savings Bank v. Hiler, 3 Hun, 209; Atlantic Savings Bank v. Hetterick,^ T. & C. 239- The liens on the land become specific liens on the fund. Liv- ingston V. Mildriim. 19 N. Y. 440; Snyder v. Stafford, ii Paige, 71; Clarkson v. Skidmore, 46 N. Y. 297; Matthews v. Duryea, 45 Barb. 69, affirmed, 4 Keyes, 525 ; Blydejihirgh v. Northrup, FORECLOSURE. 447 Art. II. Surplus Proceedings. 13 How. 289; Elmendorf V. Lockwood, 4 Lans. 396; Fliess v. Buckley, 22 Hun, 551, 90 N. Y. 286. To enable a creditor to enforce his claim on the .surplus moneys he must have a lien on the land ; the moneys stand in the place of the land for purposes of distribution among persons having vested interests or liens upon the land. Specific devisees are, therefore, entitled to sur- plus moneys according to their respective interests, subject, how- ever, to any legal claim thereon. A simple contract debtor can- not, however, claim any portion of the fund. Dclaficld v. Whitc\ 19 Abb. N. C. 104. See Short v. Bacon, 99 N. Y. 275 ; Dunning v. Ocean National Bank^ 61 N. Y. 497. The proceeds of the sale, after satisfying the mortgage debt, may be said to stand in the place of the equity of redemption to those who had title or right to that, or a Hen upon it. Jones on Mortgages, vol. 2, § 1687. But a claimant who is not a party is not entitled to any of the surplus. Root V. Wheeler, 12 Abb. 294; Mutual Life Ins. Co. v. Fruchtnicht, 3 Abb. N. C. 135; Winsloxv v. MeCall, 32 Barb. 241. See Koch v. Pureell., 47 Supr. Ct. 162. The moneys must be applied to the liens in the order of their priorit}-. Averill v. Loucks, 6 Barb. 470; Peabody v. Roberts, 47 Barb. 91 ; Freanan v. Schroeder, 43 Barb. 618; People v. Bergen, 53 N. Y. 404. Sur- plus money arising from the sale of real estate stands in the place of the land for all purposes of distribution among persons having vested interests or liens in the land. Therefore the devisees of a mortgagor on a foreclosure sale are entitled to the whole of the surplus money accruing to their respective interests under the will, subject to other legal claims which were or have become liens. Delafield v. White, 7 St. Rep. 301. The remedy of par- ties having a lien on a surplus is by motion and not by action, and except where the surplus is distributed by the Surrogate's Court, contract creditors are not in a position to assert any fur- ther equitable lien against moneys arising from sale of a dece- dent's real estate than they would have been if he were living. Delafield \r. White, 7 St. Rep. 301. As to ri^ht of party entitled to surplus moneys to bring action therefor, see Cope v. Wheeler, 41 N. Y. 303 ; Matthews v. Duryee, 45 Barb. 69 ; Bevier v. Schoon- maker, 29 How. 411. The mortgagee, if he holds the surplus, is regarded as a trustee for the persons entitled thereto. Beecker V. Graham, 2 Edw. 647 ; People v. Ulster Common Pleas, 18 Wend. 628. It is held in Russell v. Duflon, 4 Lans. 399, that a 448 FORECLOSURE. Art. II. Surplus Proceedings. mortgagee who has received a surplus from the purchaser on statutory foreclosure is liable to a subsequent judgment creditor for the balance of the surplus after deducting amount due, but interest runs only from time of the demand. Rights of the parties in the fund are not affected by the sale, and the court will apply the money according to the rights of the parties as they existed before the sale. Astor v. Miller^ 2 Paige, 68. If there be judgment liens they must be satisfied before the owner can claim anything. Eddy v. Smith, 13 Wend. 488. As to the rule where mortgages of same date exist, see Eleventh Ward Savings Bank v. Hay, 55 How. 444; Barber v. Gary, li Barb. 549. It is proper for the plaintiff to prove any lien subse- quent to the mortgage foreclosed. Field v. Hawxhurst, 9 How. 75; Beekman Fire Ins. Co. v. First M. E. Church, 29 Barb. 658; Mutual Life Ins. Co. v. Frtichtnicht, 3 Abb. N. C. 135. It is the duty of the court to distribute the surplus in the action ; Mutual Life Ins. Co. v. Bowen, 47 Barb. 618; and the authority the referee is entitled to exercise for the hearing and disposition of the claims is as extensive as the claims themselves and the legal and equitable objection that can be made to their allowance. Kingslandv. Chetwood, 39 Hun, 602; Bowen v. Kaughran, i St. Rep. 121; Snedeker v. Snedeker, 18 Hun, 355. Wherever the facts would warrant the filing a bill in equity to declare a lien on a fund, a referee in surplus proceedings may hear and determine the application and report thereon. Crombie v. Rosejitock, 19 Abb. N. C. 312. The power of the referee, in determining the validity of a claim, is not confined to so much thereof as will exhaust the surplus, but his determination thereon is conclusive on all the parties. McRobcrts v. Poolcy, 12 Civ. Pro. R. 139. But the validity of a judgment cannot be attacked collaterally in the proceeding, except on grounds of jurisdiction. White v. Bell, 73 N. Y. 256. A mortgage to secure future indorsements, if recorded, has a preference over subsequent judgments against the mortgagor, as well for indorsements made before the judg- ments as after. Ackerman v. Hunsiker, 85 N. Y. 43. The court should make such an order as while producing satisfaction of plaintiff's Hen will best protect the rights and equities of subse- quent incumbrancers of every nature. Livingston v. Mildrum, 19 N. Y. 440. Where one dies seized of real estate, incumbered bv a mortg-ajje, which is thereafter foreclosed and the lands sold, FORECLOSURE. 449 Art. II. Surplus Proceedings. any surplus arising on the sale is to be regarded as realty, and goes to the heirs or devisees and not to an administrator, and an administrator cannot maintain an action to recover the same, and this is so although the mortgage provides the surplus shall be paid to the mortgagor, his executors or administrators. Dunning V. Ocean National Bank^ 61 N. Y. 497. See Flicss v. Buckley, 22 Hun, 551 ; American Life, etc. Co. v. Van Eps, 56 N. Y. 601. A tenant for years has an equitable interest in the fund. Clarkson V. Skidmore, 46 N. Y. 297. Rent in arrears may be ordered paid from the proceeds. Catlin v. Grissler, 57 N. Y. 363. On sale of a lease under foreclosure, ground rent in arrear should be paid out of the proceeds; rents that become due after the sale should be paid by the purchaser. Holden v. Sackett, 12 Abb. 473. Where persons holding prior mortgages are not made parties, and no provision is made as to them in the judgment, the sale must be subject to such mortgages, and no portion of the proceeds can be applied in payment thereof. Bache v. Doscher, 6y N. Y. 429. Where a bond and mortgage are assigned as collateral for a loan, with an agreement, on the part of the lender, that he will, on payment of the mortgage, pay to the former all the excess of the principal over and above the amount of the loan, and without any agreement as to a foreclosure, and the mortgage is foreclosed by the lender without making the borrower a party thereto, or to any other proceeding to foreclose him, and the mortgage premises are bid in by the lender, the equitable interest which the bor- rower had in the mortgage attaches to the land, and he is en- titled to surplus in case of sale thereof by the lender for more than the amount of his claim. Dalton v. Smith, 86 N. Y. 176, A judgment confessed by two members of a firm of three, for a partnership debt, has a priority of lien over a subsequent judg- ment recovered against all three parties. Stevens v. Bank of Central N. V. 31 Barb. 290. A subsequent judgment will not be preferred over a prior unre- corded mortgage, given to secure future advances or liabilities, unless there has been a fraudulent intent on the part of the mort- gagee in withholding his mortgage from record. Thomas v. Kelsey, 30 Barb. 268. For determination of right to surplus on complicated state of facts, see N. V. Life Ins. and Trust Co. v. Vanderbilt, 12 Abb. 458. As to when second mortgages have priority over judgment creditors whose judgments are prior in [Special Actions — 2g.] 450 FORECLOSURE. Art. II. Surplus Proceedings. date of docket, see Talbnan v. Farley y i Barb. 280 ; Cook v.. Kraft, 3 Lans. 515 ; Ray v. Adams, 4 Hun, 332 ; see, also, Oppen- Jicinicr v. Walker^ 3 Hun, 30. In case a mortgage is given on; property, while a judgment is marked reversed on appeal, on which it would otherwise be a lien, and such judgment is there- after restored as a lien, the mortgage is entitled to priority of pay- ment out of the surplus money arising out of the foreclosure of a prior mortgage. Union Dime Savings Institution v. Duryea, 3 Hun, 210. The mortgage first recorded is presumptively the prior lien ; but this presumption may be overcome by parol proof. Freeman v. Schroeder, 43 Barb. 618. Judgments over ten years old are not liens on the surplus. Floyd V, Clark, 2 Law Bull. 36. It is said that the general liens of judgment creditors of a mortgagor cannot, in equity, prevail against prior equitable claims upon the specific fund as unpaid, purchase money. White v. Carpenter, 2 Barb. 217; Arnold v. Patrick, 6 Barb. 310; Szveet v. Jacoeks, 6 Barb. 355. A judg- ment creditor, who has purchased under his judgment, is entitled to the surplus arising from a sale, under a prior mortgage, in preference to a junior judgment creditor. Shcpard v. O' Neil, ^ Barb. 125; Snyder v. Stafford, ii Paige, 71. A vendee of land who, in an action of specific performance, has recovered a judg- ment for the purchase money paid, which is adjudged to be a lien on the surplus arising on a sale on a prior mortgage, from the time of filing his lis pendens, is entitled to priority of payment of his judgment out of such surplus, as against a judgment creditor whose judgment was recovered after the filing of such lis pejidejis, but he is not entitled to interest thereon from the time of such filing. Hull V. Spratt, i Hun, 298. Judgment creditors are en- titled to payment in order of their priority ; but if the persons against whom the judgments were acquired had only an equitable interest in the property, they acquire no lien and no priority. Piirdy V. Doyle, i Paige, 558. Where a transfer is set aside as fraudulent, as against creditors, a mortgage given by the fraudulent transferee in consideration of the transfer, and assigned to a bona fide pur- chaser for value, is, as between the parties to the fraud and the creditors, chargeable wholly to the former ; and on its foreclosure, the creditors are entitled to the whole surplus. Smart v. Bement, 4 Abb. Ct. of App. Dec. 253. See Warden v. Brownings 12 Hun, 497. A lessee of the equity in mortgaged premises, with covenants,. FORECLOSURE. 45 1 Art. II. Surplus Proceedings. has a right to share in the surplus in preference to the lessor ; this right is an incumbrance on the land to the extent of the lessor's interest. Clarkson v. Skidjiiore, 46 N. Y. 297 ; Douglass v. Woodworth, 51 Barb. 79. But a judgment cuts off the title of a tenant holding under a lease, without covenants made subse- quent to the mortgage, and he is not entitled to share in the sur- plus. B2irr V. Stenton, 43 N. Y. 462. A lessee of mortgaged premises, as between him and the owner, is entitled to any sur- plus arising out of foreclosure sale, up to the loss resulting to him from the extinguishment of the lease, which is the value of the use of the premises for the remainder of his time, less the rents reserved. Larkiii v. Misland, 100 N. Y. 212. A general lien on the mortgaged premises will be preferred to a subsequent specific one, where the holder of the former has no other fund to resort to. Mechanics' Bank v. Edtvards, 2 Barb. 545. As to right to surplus under mechanic's lien not continued by the court, after expiration of one year, where premises are foreclosed, see Emigi'aJit Industrial^ etc. Bank v. Goldman, 75 N. Y. 127. It is held, that where a junior mortgage is taken as collateral for another obligation, that the mortgagee was not en- titled to receive his debt out of the surplus, without first exhaust- ing his principal security. Soule v. Ludlow, 3 Hun, 503. One who has taken a mortgage after lis pendens filed, has a right to be heard, although not a party. Koch v. Purcell, 45 Supr. Ct. 162. Where the mortgagors severally own separate undivided shares in the property, and one is simply surety for the other, the surety has a right to have the share of the principal sold first, if enough can in that way be made to pay the debt, or if the whole has been sold, and a surplus produced, to have such sur- plus, to the extent of his undivided interest, paid to him. Erie Co. Savings Bank v. Roop, 80 N. Y. 591. A mortgagee recover- ing a deficiency judgment against a mortgagor's administrators, cannot maintain an action to have his claim declared a lien on surplus moneys, on foreclosure of mortgage on other lands given by the same mortgagor to another mortgagee ; his remedy, aside from that against the personal estate of the decedent, is by action against the mortgagors, heirs or devisees, and if they are insol- vent, the court may direct the surplus to be held and applied to the judgment. Fliess v. Buckley, 24 Hun, 514,90 N. Y. 286. Where the order of lien is as follows: The first mortcraee having; 452 FORECLOSURE. Art. II. Surplus Proceedings. the right of priority over the second, but not over the third, the second having right of priority over the third, but not over the first, and the third having right of priority over the first, but not over the second, set apart the amount due on the first, from the remainder pay the second, apply the portion set apart as due on the first in payment of the third, and if this is not sufficient to satisfy it, from any remainder there may be, if still there is a remainder, apply it in payment of the first. Bacon v. Van Schoonhoven, 19 Hun, 158. A mortgage was made for the benefit of a brother on two tracts of land, one owned by himself and his sisters as tenants in common, the other owned by himself individ- ually, a judgment was afterward obtained against him, and sub- sequently the sisters mortgaged their interest. Held, that on the foreclosure of the first mortgage, the mortgage executed by the sisters was entitled to priority in the surplus money over the judg- ment. Savings Bank of Utica V. Wood, 17 Hun, 133. A widow is not entitled to a gross sum in lieu of her annuity, as a matter of right, upon distribution of surplus moneys by the surrogate. Matter of Zahrt, 94 N. Y. 605. A widow is, however, entitled to dower in surplus, after paying incumbrances, to which she is bound to contribute. If the husband is living, one-third m.ust be invested for her during their joint lives; if dead, she is entitled to the income of one-third for life. Denton v. Nanny^ 8 Barb. 618; Vartie v. Underwood, 18 Barb. 561 ; Mattheivs v. Dnryee,^ Keyes, 525. The claim of a wife of a mortgagor, who joined in the exe- vJ cution of the mortgage, for the value of her right of dower in the surplus, is superior to claims of the judgment creditors of the mortgagor, notwithstanding a provision in the mortgage for the return of the surplus, if any, to the mortgagor, his heirs or assigns. N. Y. Life Ins. Co. v. Mayer, 19 Abb. N. C. 92, citing Mills v. Van VoorJiies, 20 N. Y. 412; Simar v. Canaday, 53 N. Y. 298; Aikman v.Harsell, 98 N. Y. 186; Moore v. Mayor, Aldermen, etc. of New York, 8 N. Y. iio. Where a surplus arises upon fore- closure of a first mortgage in a County Court, the claims thereon of a second mortgage, and of judgment creditors, for deficiency on foreclosure of other mortgages by the same mortgagor, may be determined in County Court before the referee, and an action cannot be maintained for that purpose. Fliess v. Buckley, 90 N. Y. 286. After a sale under foreclosure and before distribution of the surplus, one who had a judgment lien at the time of sale FORECLOSURE. 453 Art. II. Surplus Proceedings. may have the proceedings opened, that he may be heard on his right to share in the surplus. Citizens Savings Bank v. Van Tas- scll, 5 Law Bull. 50. Where it appears that the intent in execut- ing written instruments was to assign shares of surplus moneys, though express words of assignment are not used, such instru- ments will be held to be equitable assignments; the referee may report directly in favor of the equitable assignee. Bowen v. Kaughran, i St. Rep. 121, A judgment creditor, whose lien has been suspended on appeal, does not lose all interest in surplus moneys derived from lands on which the judgment was a lien. Emigrant Industrial Savings Bank v. Lynch, 2 St. Rep. 124. Where the mortgage of a defendant, on foreclosure of a prior mortgage, is adjudged to be prior to a part of plaintiffs, but it appears that it is involved and questioned in another action, it is proper that distribution await the result of such litigation. Bul- lymore v. Seward, 15 Week. Dig. 283. Where an administrator recovers judgment upon a former judgment of his decedent, it is no answer to his claim for surplus that the judgment v/as sued without leave of the court. Gerfnan Savings Bank v. Carrington, 14 Week. Dig. 475, affirmed, 89 N. Y. 632. Where the plaintiff has purchased the interest of creditors, for whose benefit a junior mortgage has been executed, surplus moneys arising on the sale, under a prior mortgage, will not be directed to be paid into court, as plaintiff is entitled thereto, and the fund would only be bur- dened with payment of fees and commissions. Hoffjuan v. Sulli- van^ 23 Week. Dig. 311. All surplus moneys must be paid into court, and their distribution is regulated by rules of the Supreme Court. The rule that surplus moneys arising upon a foreclosure sale belong to the parties having interests in the land sold, in the order of the priority of such interests, was apolied in Wilkinson v. Paddock, 57 Hun, 191 ; S. C. 32 St. Rep. 535. A person whose easement in mortgaged premises is foreclosed, is entitled to share in the surplus to the extent of her interest in the premises. The surplus moneys represent the entire estate in the land including the interest or ownership of both the dominant and servient estates. Winthrop v. Welling, 2 App. Div. 229. No claimant can successfully assert right to surplus moneys unless he establishes the existence in his favor of a lien upon the land which he could have enforced against it. The mere fact of 454 FORECLOSURE. Art. II. Surplus Proceedings. filing a notice of pendency where no complaint in the action is filed does not create a Hen upon the land described in the lis pendens. Albro v. Bliune, 5 App. Div. 309. In surplus proceed- ings on foreclosure of a corporate mortgage, expenses incurred by a reorganization committee may be adjusted, and a claim to a lien therefor determined and enforced. Raht x.Attrill, 106 N.Y. 423, modifying 42 Hun, 414. In proceedings to ascertain liens on the surplus moneys, the rule in equity as to the application of partnership and individual prop- erty among firm and individual creditors is said not to apply, but that the rule of law controls, which gives a judgment creditor of the firm, who has acquired a lien upon the lands of a partner by docketing, a judgment and claim upon the surplus superior to the claim of a junior judgment creditor of the partner. N. V. Life Ins. Co. V. Mayer, 19 Abb. N. C. 92. Where a purchaser under foreclosure buys, under the belief that the mortgage was a first lien, and it is afterwards discovered that there was a prior mort- gage, the surplus moneys, after satisfying the mortgage debt, may be recovered back by the purchaser, by a suit in equity. Miiehl- berger v. ScJiilling, 3 N. Y. Supp. 705. A lien on surplus moneys is not created by the commencement of an action to set aside a fraudulent conveyance of the premises. Swart V. Oaklej, 22 Abb. N. C. 125. The proceeds of a sale under foreclosure given by the debtor to secure various debts, are paid over to the creditor, not as a voluntary payment, but by operation of law and in the absence of directions given in the security, their application is to be made by the court in accord- ance with equitable principle. The rule of equity in such cases where the proceeds are insuf^cient to satisfy all of the debt, decree is that they should be applied pro rata, each debt sharing in the fund without regard to priority of date or to the fact that for some of the debts the creditor holds other security. Orleans Co. National Bank v. Moore, 112 N. Y. 543, afifirming 48 Hun, 70. On foreclosure of a mortgage given by defendant's testator to plaintiff, plaintiff became the purchaser; subsequently, the decree and sale were vacated ; held, that plaintiff was entitled to the expenditures made by him for repairs and taxes, while in posses- sion as a charge against the balance in his hands, the amount due on the mortgage having been reduced by rents. Wood v. Kroll^ 21 St. Rep. 764. FORECLOSURE. 455 Art. II. Surplus Proceedings. Where the judgment debtor acquired title to real property •through the death of the owner, it was held that the judgment creditor's lien upon the surplus arising upon the foreclosure of the mortgage of the lands was an equitable one, and that judgment creditors should be paid upon the basis of equality, the debtor ■not having had title to the property at the time the judgments were obtained against him, and that until the property became vested in the debtor by the death of the prior owner, no lien could attach thereon. Goct:; v. Mott, 15 Civ. Pro. R. 11. A judgment against executors for work done under a contract made with them for improvements on property of the estate other than that foreclosed, is not a lien upon and is not payable out of the surplus money. Mandcr v. Loiv, 12 Misc. 316, 33 Supp. 719, ■67 St. Rep. R. 544, 24 Civ. Pro. 368. The right of the subse- quent mortgagee to the surplus moneys arising on foreclosure of the first mortgage, is not affected by judgment rendered in an action to which such mortgagee was not a party, against the person who gave a second mortgage. MccJumics Savings Bank V. Sclyc, 83 Hun, 282, 31 Supp. 921, 64 St. Rep. 728. Where the widow united in the mortgage, she will be entitled to dower only in the surplus after payment of the mortgage. Smith v. Jackson, 2 Edw. Ch. 28; Titus v. Ncilson, 5 Johns. Ch. 458; Haivlcy m. Bradford, 9 Paige Ch. 300. A judgment recovered against the owner of the equity prior to a sale, will be a lien, but not so if not perfected until after the sale is made, although docketed before the surplus moneys are distributed. Sxvcet v. Jacocks, 6 Paige, 355; Dcnhani v. Cornell, 6y N. Y. 556; Hull v. Spratt, i Hun, 298. The widow of the owner of the equity of redemption is entitled to dower in the surplus the same as in the land before the sale. Ebncndorf w. Lockwood, 4 Lans. 393; Denton v. Nanny, 8 Barb. 618; Titus v. Neilson, 5 Johns. Ch. 458. Sub. 2. Method of Distributing Surplus. Rule 64, Rule 64. Application for surplus moneys — reference — searches — unsatis- fied liens. On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the ■clerk where the report of sale is filed, a notice, stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim, 456 FORECLOSURE. Art. II. Surplus Proceedings. may have an order of reference, to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascer- tain the priorities of the several liens thereon; to the end that, on the coming in and confirmation of the report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. The referee shall, in all cases, be selected by the court. The owner of the equity of redemp- tion, and every party who appeared in the cause, or w^ho shall have filed a notice of claim with the clerk, previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to attend on such reference, and to the usual notices of subsequent proceedings relative to such surplus. Eut if such claimant or such ojvtier has not appeared, or made his claim by an attorney of this court, the notice may be served by putting the same into the post-office, directed to the claimant at his place of residence, as stated in the notice of his claim, and upon the owner in such manner as the court ?nay di- rect. All official searches for conveyances or incumbrances, made in the pro- gress of the cause, shall be filed with the judgment-roll, and notice of the hear- ing shall be given to any person having or appearing to have an unsatisfied lien on the moneys, in such manner as the court shall direct; and the party moving for the reference shall show, by affidavit, what unsatisfied liens appear by such official searches, and whether any, and what other unsatisfied liens are known to him to exist. The party prosecuting the reference must produce a certificate of the clerk with whom the report is filed, and the surplus moneys deposited, showing that no notice of claim to such surplus was annexed to the report of sale, and that no claim to the same has been filed, previous to the order of reference, or if claims have been filed, stating the names of the claimants and of their solicit- ors, if any, and of their place of residence. Hnrlbtirt v. McKay, 8 Paige, 651. An incumbrancer, who has neglected to file his claim, may go before the referee and file his claim before him. The claims must be verified, and the referee may examine the claimants on oath. Hurlburt v. McKay, 8 Paige, 651. The referee will take the oath required by § 1016, and the testimony of the witness should be signed under Rule 30. The reference is one to hear and determine, subject to confirmation by the court, which has ample power to confirm, set aside, or to refer back the report, but is not authorized to make new findings, or to change those already made. Mutual Life his. Co. v. A?ithony, 23 Week. Dig. 427. The referee should ascertain by the proper certificate and other evidence, that all the claimants and other parties have been notified or summoned to appear before him on such refer- ence, and the fact that such certificate and other evidence was produced before him should be stated in his report. Hurlburt v. McKay, 8 Paige. 651. FORECLOSURE. 457 Art. II. Surplus Proceedings. The master's report on a reference as to surplus money should show that the parties attended, or that evidence was produced to him that they were duly summoned, and show the whole amount of the surplus moneys and who is entitled thereto, so that upon his report the court may dispose of the whole fund. Franklin v. Van Cott, II Paige, 129. It is the duty of a person having a lien to go before the master upon the reference, and present or estab- lish his claim there, and when he neglects to do so without any excuse the court will not settle his right to surplus moneys on petition. De Rnyter v. St. Peter s Church, 2 Barb. Ch. 555. The reference as to liens as to surplus moneys in a foreclosure suit is not a mere collateral reference, but is a direct issue necessarily to be determined before the court can finally and completely admin- ister the fund arising from the sale of the mortgaged premises. Mutual Life Ins. Co. v. Boiuen, 47 Barb. 618. It is a special pro- ceeding. Mutual Life Ins. Co. v. Anthony, 23 Week. Dig. 427. The surplus moneys arising from the sale of lands of a deceased mortgagor will not be ordered to be paid to the surrogate for dis- tribution unless the sale be within four years after the granting of letters testamentary. White v. Poillon, 25 Hun, 69. For prac- tice on distribution of surplus among creditors of a deceased mort- gagor, see German Savings Bank v. Sharer, 25 Hun, 409. The authority of a referee on surplus proceedings is as extensive as the claims themselves, and the objections that may be made to their allowance and his report will not be set aside simply on account of an irregularity in receiving or considering the claims v/hich were not filed with the county clerk. The provisions of Rule 64 as to notice are not intended to be restricted to liens appearing upon the record, but apply to any which may be shown to exist. Kingsland v. CJietwood, 39 Hun, 602. The court has power, in its discretion, to confirm or set aside the report of a referee appointed to ascertain the claimant's rights to surplus moneys in foreclosure, and is not restrained, in the exercise of it, to the rules governing a new trial. Mutual Life Ins. Co. V. Salem, 3 Hun, 117, and Abb. Dig. Supp. Foreclosure, page 1003; Dold v. Haggerty., Sup. Ct. 1881, as following this rule and holding that the court may direct a different disposition to be made of the fund from that reported by the referee, or it may refer the case back for a further hearing, as justice may appear to require. The report of a referee, in proceedings for the dis- 458 FORECLOSURE, Art. II. Surplus Proceedings. tribution of surplus moneys arising on foreclosure, upon confirma- tion by the court, becomes a valid and binding judgment. Mc- Robcrts V, Pcolcy, 12 Civ. Pro. R. 139. Where a general creditor, who had no notice of the proceedings to distribute surplus until after the entry of the order confirming the report of the referee, applies to be made a party, his application should be granted. German Savings Bank v. Sharer, 25 Hun, 409. In proceedings for surplus, claimants put in evidence transcripts of judgments recovered by them, in actions commenced against a person of same name as the owner of the equity. It was held there was a presumption that the owner of the equity and the judgment debtor were the same person. Bowery Savings Bank v. Keenan^ 14 Week. Dig, 143. On failure of an attorney to pay over sur- plus moneys received by him, an attachment may issue, and the burden of proving that he has paid them to the county treasurer rests on him. Matter of Silver nail, 45 Hun, 575. In a proceed- ing to ascertain the priority of liens to surplus, the rule of equity as to the application of partnership and individual property among firm and individual creditors does not apply, but the rule of law applies which gives a judgment creditor of the firm, who has acquired a lien by judgment upon lands of a partner, a claim upon the surplus superior to the claim of a junior judgment creditor of the partner. N. Y. Life Ins. Co. v, Mayer, 19 Abb. N. C, 92. Where a claim to surplus has been rejected in a proceeding to distribute, the claimant cannot afterward insist that the moneys shall be paid into Surrogate's Court. Conicy v. Clark, 4 Supp. 850, Where surplus moneys had been paid over to the chamberlain in the city of New York, by him deposited with the defendant, and thereafter by an order duly made, countersigned and served, the defendant was required to pay such moneys to certain persons and did so, held, that plaintiff, representing parties in fact entitled to such moneys, could not maintain action against defendant therefor. The remedy of plaintiff was to apply for an order stay- ing proceedings of defendant upon the payment. Szvart v. Cen- tral Trust Co. 27 St. Rep. 113. It is the duty of the referee in surplus proceedings to incorpo- rate in his decision all the facts found by him including those found at the request of any party to the proceedings. Bigelow v, Doying, 36 St. Rep. 636. On the distribution among rival claim- FORECLOSURE. 459 Art. II. Surplus Proceedings. ants of the surplus moneys in special proceedings, the reference is one to hear and determine, subject to confirmation by the court, which has ample power to confirm, set aside or refer back the report, but is not authorized to make new findings or change those already made. Mut7ial Life his. Co. v. Anthony, 105 N.Y. 57. The general rules of evidence which govern the court on the trial of an action apply to a hearing upon a reference in surplus money proceedings, and the established rules of evidence can not be changed by an order of the court unless in the case where such authority may be specially given or the change relates to some matter which rests in the discretion of the court. Mutual Life Ins. Co. V. Anthony, 50 Hun, loi ; appeal dismissed, 105 N. Y. 57. A motion by a general creditor to be made a party to the action that has been brought by a judgment creditor of the cor- poration whose property was being foreclosed for the collection of his judgment, and asking that all the creditors be required to exhibit and prove their claims before a referee to be appointed for that purpose, was properly denied, as such rights could be adjusted in the proceedings on the distribution of the surplus. Hcrrinian v. Brooklyn, etc. R. R. Co. 12 St. Rep. 877. The surplus moneys belong to the owner of the equity of redemption unless claims are filed and they are paid over on tho.se claims. Horn v. Toion of Nczv Lots, 83 N. Y. loo; Day v. l\nvn of ArTt' Lots, 107 N. Y. 148. The moneys in surplus pro- ceedings stand in the place of the land for the purposes of distri- bution. Dc La Field v. White, 19 Abb. N. C. 104. Where surplus moneys had been invested pursuant to the order of the court, until the death of a certain person named, and upon her death to await the further order of the court, it was held that a party entitled thereto, after the death of such life tenant, could apply in the action in which the order directing the investment was made, for a distribution of the surplus. J'elten v. Vogt, 17 St. Rep. 112. The provisions in a judgment of foreclosure directing the order in which the different parcels shall be sold, is not conclusive on the application to distribute the surplus. On foreclosure of a blanket mortgage on property upon which there were junior mortgages, affecting different parcels, some of which mortgages 460 FORECLOSURE. Art. ri. Surplus Proceedings. covered one and others more than one parcel, and the decree pro- vided for the sale of the separate parcels in the inverse order of alienation, it was held that after payment of the mortgage in suit and the next mortgage upon the parcel last sold, the surplus should be distributed among the holders of the various junior mort- gages, according to the dates when they respectively became liens, except that in no case should a greater amount be paid on account of the liens, on any one lot, than was realized for that lot on the sale. Biirchell v. Osborne^ 19 St. Rep. 52; S. C. 6 N. Y. Supp. 863, afifirmed, 119 N. Y. 486. The claim of mortgagor's wife to dower in surplus moneys can be entertained in surplus proceedings. N. Y. Life Ins. Co. V.Mayer, 12 St. Rep. 119, affirmed, 108 N. Y. 655. As to when lands became charged with an equitable lien in favor of mechanics and materialmen, so as to have such lien attach to the surplus moneys, see Crombie v. Rosenstock, 19 Abb. N. C. 312. All surplus moneys arising from the sale of real property under foreclosure must be paid into court for the use of the persons entitled and the subsequent practice with respect to their dispo- sition is regulated by Rules 61 to 64. Where it was sought to have the claim of a second mortgagee asking for surplus, reduced by the amount of an uncollected policy of insurance on buildings on premises, on the ground that failure to collect said policy resulted because the mortgagee had not filed due proof of loss, it was helei, that the determination of the referee was res adjudicata as to the amount to be collected upon the mortgage, and the question was not open for further litigation. McRobcrts v. Pooley, 12 Civ. Pro. R. 139. Surplus proceedings will not be delayed to await the determi- nation of a pending action to set aside the deed on the ground of fraud, where all questions as to the fraudulent character of the conveyance can be tried in such proceeding. Wolfers v. Duffield, 72 Hun, 637, 55 St. Rep. 485, 25 Supp. 374. In distribution of surplus moneys, judgments over ten years old are not a lien and must be excluded. Floyd v. Clark, 16 Daly, 528, 17 Supp. 848. The party having the first lien upon the fund cannot be deprived thereof on the application of subsequent claimants upon the ground that his lien extends to other property which is sufficient to satisfy his entire claim. The right to have securities mar- shaled in such case cannot be enforced in the surplus money pro- FORECLOSURE. 4^1 Art. II. Surplus Proceedings. ceedings to one in an action where all the parties and the entire funds are before the court. Qiiackenbush y . O' Hare, 129 N. Y. 485, 42 St. Rep. 104, affirming 61 Hun, 388, 40 St. Rep. 797, 16 Supp. 33. Where no issue has been raised in the pleadings and by the proceedings in foreclosure as to the equities of subsequent incum- brances, they are not to be determined by a decree of foreclosure and sale, and if there is a surplus after the sale they may be adjusted in that proceeding. Burchellv. Osborne, 119 N. Y. 486, affirming 26 St. Rep. 163, 6 Supp. 863. After an interlocutory judgment had been entered declaring a deed to be a mortgage and an accounting ordered, the plaintiff died and the action was not revived, held, that it was not a bar to proceedings to distribute the surplus money in an action after- ward brought to foreclose a prior mortgage and that the referee therein could determine the claims of all parties to the surplus. Baker v. Baker, 70 Hun, 95, 53 St. Rep. 442, 23 Supp. 1083. Where a party claiming surplus moneys was also interested in an action of ejectment relative to the mortgaged premises and he had been a party to the foreclosure, it was held the claim on which the ejectment suit was founded was cut off by a decree, and whatever rights he had must be pursued in the proceedings concerning the distribution, and that where surplus moneys were paid to the surrogate under §§ 2797 and 2798 without objection, the jurisdiction of the surrogate could not be questioned in a sub- sequent proceeding before him. Matter of Stilwell, 68 Hun, 407, 52 St. Rep. 689, 22 Supp. 65, 54 St. Rep. 491, Matter of Equit- able Relief Fund Life Assn. 131 N. Y. 377. A simple contract creditor has no lien upon the funds. Dela- field V. Wliite, 19 Abb. N. C. 104. But it is said that general legal liens of judgment creditors cannot in equity prevail against prior equitable claims upon the mortgaged premises. Siveet v. Jacocks, 6 Paige, 355; Arnold v. Patrick, 6 Paige, 310; JV/iite v. Carpenter, 2 Paige, 217. The inchoate rights of mechanics and materialmen seem to be regarded as in the nature of liens. Livingston v. Mildrum, 19 N. Y. 440. This rule does not apply to distribution of surplus of a deceased mortgagor, which should be distributed ratably among the general and judgment creditors of the deceased owner according to law. Loucks v. Van Allen, 11 Abb. (N. S.) 427; 462 FORECLOSURE. Art. II. Surplus Proceedings. White V. Poilloii, 25 Hun, 69; German Savings Bank v. Sharer, 25 Hun, 409. The owner of a lien who is not a party to the suit and who is not cut off by a foreclosure cannot claim the sur- plus. Winslo2v V. MeCall, 32 Barb. 241 ; Bache v. Doseher, 67 N. Y. 429; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127. Prior lienors have no claim upon the surplus. De Ruyter v. St. Peter s ChiircJi, 2 Barb. Ch. 555. And on such reference the court will adjust equities between subsequent lienors whenever they can be established. Oppenheimer v. Walker, 3 Hun, 30; James v. Hubbard, i Paige Ch. 228; Synder v. Stafford, i Paige Ch. 71 ; Nezv York Life Ins. & Trust Co. v. Vanderbilt, 12 Abb. Pr. 458; Savings Bank of Utica v. Wood, 17 Hun, 133, and all incumbrances inferior to the mortgage must be paid in the order of time in which they became liens. Haines v. Beaeh, 3 Johns. Ch. 459; Savings Bank of Utieav. Wood, 17 Hun, 133. And to enable a creditor to enforce his claim to surplus, he must establish a lien on the mortgaged premises. The surplus moneys take the place of the land. Clarkson v. Skidmore, 46 N. Y. 297 ; Liv- ingston v. Mildrum, 19 N. Y. 440; Elmendorf v. Lockwood, 4 Lans. 393. All surplus money arising from the proceeds of a mortgage fore- closure sale must be paid into court and its subsequent distribution is regulated bv the rules of the court. Raht v. Attrill, 106 N. Y. 423. In certain cases, however, under § 2798, where moneys have been realized from sale in foreclosure of a mortgage executed by a decedent, and letters testamentary or of administration upon the decedent's estate Avere within four years before the sale issued from the Surrogate's Court, surplus money must be paid into such court. All liens upon or interests in the mortgaged premises, which are inferior to the mortgage foreclosed, are transferred to the surplus, and all persons owning such liens or interests are entitled to participate in its distribution and an order of refer- ence may be made to ascertain the way in which the liens must be paid. Averill v. Loucks, 6 Barb. 470; Blydenburg v. North- rup, 13 How. 289; Mut. Life Ins. Co. v. Truchnicht, 3 Abb. N. C. 135. FORECLOSURE. 463 Art. II. Surplus Proceedings. Precedent for Notice of Claim to Surplus. SUPREME COURT. MUTUAL LIFE INSURANCE COMPANY, Plaintiff, agsL THOMAS H. ANTHONY, Impleaded, etal. ^ 105 N. Y. 57. Take notice that the undersigned is entitled to the surplus or a part thereof arising on the sale made in this action on the 5th day of April, 1883, as follows: The undersigned recovered a judgment in this court against the said Thomas H. Anthony on the 28th day of December, 1882, and while he was the owner of the equity of redemption in the premises described in the judgment in this action for $3,360 damages, and $18.21 costs, which was duly docketed in Jefferson County Clerk's office on that day, that being prior to the commencement of this action, and the said premises being situated in said county, and said claimant is still the owner and holder of said judgment which remains wholly unpaid, and there is now due and owing thereon the full amount of damages and costs with interest from December 28th, 1882, and the undersigned thereby acquired a lien on said mortgaged premises for the amount of said judgment and interest, which attaches to such surplus, after the plaintiff's mortgage and such other claims and liens as may be duly ascertained to be prior thereto pursuant to the course and practice of this court. Dated April nth, 1883. H. C. ANTHONY, DORWIN & BROWN, To F. Waddingham, Clerk. Claimant's Attorneys Precedent for Order of Reference as to Surplus. At a Special Term of the Supreme Court held at the court house in the city of Syracuse, in the county of Onondaga, on the first day of May, 1883. Present — Hon. M. H. Merwin, Justice. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK agst. THOMAS H. ANTHONY and Others. ► 105 N. Y. 57. The sheriff's report of sale having been filed in this action and the same having been confirmed, from which it appears that there is a 464 FORECLOSURE. Art. II. Surplus Proceedings. surplus into court arising from said sale, on reading and filing affi- davit of John Lansing, and notice of claim of the National Bank & Loan Company of Watertown, to such surplus money or some por- tion of it by virtue of a lien thereon under several judgments recovered in this court against the said defendant Thomas H. An- thony, while he was the owner of the equity of redemption and also as the owner of the equity of redemption by virtue of a deed from the said Thomas H. Anthony to the said National Bank & Loan Company of Watertown, the certificate of the county treasurer show- ing amount of surplus moneys in his hands, and notice of motion for the appointment of a referee with due proof of service of the same on the defendants who have appeared in this action, and those par- ties who have filed claims for said surplus money, Now, on motion of C. L. Adams, of counsel for the said National Bank & Loan Company of Watertown, on consent of Dorwin & Brown, attorneys for claimants H. C. Anthony and Paul W. Anthony, ordered, that it be referred to Charles D. Adams, of the city of Utica, N, Y., as referee to ascertain and report the amount due the said National Bank & Loan Company of Watertown, or to any other person, which is a lien upon such surplus money, and to ascertain the priorities of the several liens thereon, and it is further ordered, that such referee summon before him on the reference every party who has appeared in this action and every person who has delivered written notice of his claim to such surplus moneys, and that he cause them to have the usual notice of all subsequent proceedings and report thereon with all convenient speed. H. HAREFORD, Deputy Clerk, Report of Referee. (Title.) To the Supreme Court of the State of New York : The subscriber, a referee in the above-entitled action, appointed under and by virtue of an order made and entered therein on the 14th day of May, 1888, whereby said action was referred to me to ascertain and report the amount due Johannis Van Buren, who claimed a lien upon the mortgaged premises sold in the above action, and also the amount due any other person having sucn a lien, which are now liens upon the surplus funds ar'sing upon such sale, and also to ascertain and report the priority of such liens in their order, would respectfully report as follows: That the certificate of the treasurer of Ulster county, the county in which the mort- gaged premises are situated, shows that there is in his hands, to the credit of this action, the sum of $800, the amount of the surplus money on the sale aforesaid, as paid by the referee, and all interest on the same, which certificate is hereto annexed as schedule A.; that on the 24th day of J"ly, 1888, I was attended by all the parties who had appeared in the action, or who had filed notice of claim upon such surplus monevs. nnr'^uant to notice given June 14, 1888, proof of service of which said notice is hereto annexed and marked FORECLOSURE. 465 Art. II. Surplus Proceedings. schedule B. ; and that on said day I was attended by WilUam T. Holt, attorney for claimant Johannis VanBuren, and by Severyn B. Sharpe, who appeared for claimant Mary Van Dyne, and upon such examination I took the evidence and proofs offered by the several parties, which same are hereto annexed. I find the following facts as proven herein, viz: That the claimant Johannis Van Buren is the owner of a certain judgment, in the sum of $300, obtained by the said Johannis Van Buren against the said Frank L. DeGraw, July 17, 1884, and docketed the same day in Ulster county clerk's oftice, and on which there is now due the sum of $300, together with inter- est thereon from July 17, 1884; that the claimant Mary Van Dyne is the owner of a certain judgment in the sum of $465, obtained by the said Mary Van Dyne against the said Frank L. DeGraw, June 20, 1885, and duly docketed in Ulster county clerk's office, June 26, 1885, and on which there is now due the sum of $465, and interest from June 20, 1885. From the facts above stated, I find and report that the amount of the surplus funds herein which shall remain after the payment of the costs and disbursements of this proceeding, as far as the same shall extend, should be distributed as follows: First. To Johannis Van Buren, in payment of the judgment above mentioned, and interest from July 17, 1884, upon his canceling said judgment of record. Second. To Mary Van Dyne, in payment of the judgment above named, and interest from June 20, 1885, upon her satisfying said judgment. All of which is respectfully submitted. Dated August i, 1888. A. W. COOPER, Referee. Notice of Motion to Confirm Report. (Title.) Take notice that the referee's report as to the surplus moneys in this cause, with a copy of which you have heretofore been served, will be presented to this court at a Special Term thereof, to be held at the court house in Kingston city, Ulster county, New York, on the 15th day of August, 1888, at the opening of the court on that day, or as soon thereafter as counsel can be heard, and a motion will then and there be made for an order confirming said report, and that the treasurer of the county of Ulster pay to the defendant Johannis Van Buren the sum of $300, and interest thereon from July 17, 1884, and for such other or further relief as may be just, with costs. Dated August 5, 1888. (Signature.) To Order of Confirmation. (Caption, usual form.) (Title.) On reading and filing the report of the referee herein, duly appointed, by order of this court, to take proof of the liens of the [Special Actions — 30.] 466 FORECLOSURE. Art. II. Surplus Proceedings. various claimants to tiie surplus funds in the foreclosure proceedings above entitled, and upon due proof that all of the parties having claims to said moneys have been brought into court, and after hear- ing William T. Holt, attorney for Johannis Van Buren, Severyn B. Sharpe, attorney for the claimant Mary Van Dyne, and on the cer- tificate of the county treasurer, by which it appears that there is in his hands the sum of $800 to the credit of this action, it is ordered. First. That the report of the said referee be and the same is hereby in all things confirmed. Second. That the county treasurer pay first to William T. Holt and to Severyn B. Sharpe each the sum of $20 as costs of this pro- ceeding. Third. That he pay to A. W. Cooper the sum of $15, being his fees as referee herein. Fourth. That he pay to Johannis Van Buren the sum of $300 and interest from July 17, 1884. Fifth. That he pay to Mary Van Dyne the balance on her judg- ment for $465. A. B. PARKER, J. S. C. Sub. 3. Costs and Appeal from Order in Surplus Pro- ceedings. On application for surplus in foreclosure no costs can be allowed except motion fees and the fees of the referee ; the hearing before the referee is not a trial, and no extra allowance can be made. McDermott \. Hoincssy, 9 Hun, 59; Wellington v. Ulster Co. lee Co. 5 Week. Dig. 104; Matter of Gibbs, 58 How. 502; Barley v. Alleond, 8 Daly, 126; Gcruian Savings Bank v. Sharer, 25 Hun, 409; Ekvell V. Robbins, 43 How. 108; Dudgeon v. Smith, 23 Week. Dig. 400. Where the surplus is small, and unsuccessful - claimants have caused unnecessary expense, they may be charged 1 with costs. Bevier v. Sclwonuiaker, 29 How. 41 1; Latvton v. Sager, 1 1 Barb. 349. One litigating in good faith will not be so charged. Norton v. Whitings i Paige, 578; Farmers Loan and Trtist Co. V. Millard, 9 Paige, 620. Where there are surplus moneys in hands of mortgagee, arising from a statutory foreclosure, and two actions have been brought by judgment creditors of the mortgagor to obtain such surplus, and a reference has been ordered and neither party appeals, it will be treated as a reference under the rule. Kirby v. Fitzger- ald, 31 N. Y. 417. Where an order of the General Term, revers- ing an order of the Special Term, which directed as to the dis- position of surplus moneys in a foreclosure suit and sending back FORECLOSURE. 467 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. the case to a referee, imposes costs absolutely, in this respect it is a final decision and an appeal can be taken to the Court of Appeals. Bergen v. Carman, 79 N. Y. 146. An order of the General Term reversing an order of the Special Term which confirmed the report of a referee appointed to determine as to conflicting claims to surplus money arising on a foreclosure sale and ordering a new hearing before a referee, is not reviewable in Court of Appeals. If the inquiry is considered as a special pro- ceeding under the Code, then the order of the General Term is not final and so not reviewable. If it be regarded as an inquiry made for the information of the court, then the order is not appealable, both becau.se it is not final and is discretionary. Mutual Life Ins. Co. v. Ant]iony^ 105 N. Y. 57. The remedy of a party aggrieved is by appeal. McRoberts v. Poolcy, 12 Civ, Pro. R. 139. ARTICLE XII. Precedents for Foreclosure of Mortgage Given to Secure Bonds. The increased number of mortgages given to secure bonds and the very considerable amounts involved, as well as the frequent foreclosures, render it desirable that the practitioner should have at hand precedents for this class of cases. The formal papers, such as notice of pendency, affidavits of regularity, order of refer- ence to compute amount due and take proof of facts and circum- stances, are omitted. As the evidence and report of referee differ from the ordinary form they are given. The report of sale is omitted as it is in the usual form, while the order of reference based upon that report is given, since it provides for the taking of evidence as to ownership of the bonds followed by notice to bondholders to prove ownership. Affidavit of service of such notice should be attached to report. This is followed by the order for distribution and report of referee that such di.stribution has been made. A formal order should be obtained confirming such report. 468 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. i Precedent for Complaint. SUPREME COURT — Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufactur- ing Company, Plaintiff, agst. SHEFFIELD MANUFACTURING COM- PANY, Defendant. The plaintiff, on behalf of all the holders of the bonds secured by a certain mortgage hereinafter mentioned, complains and avers: First. That the defendant, the Sheffield Manufacturing Company, now is and was at all the times hereinafter named a domestic corpora- tion, duly organized and incorporated under and by virtue of the laws of the State of New York, and especially under the provisions of chapter 193 of the Laws of New York, passed April 6th, 1890. Second. That upon the 30th day of August, in the year 1890, the said Sheffield Manufacturing Company was duly indebted in the sum of four hundred and fifty thousand ($45o,ooo)dollars, by reason of debts contracted and obligations assumed by it in the business for which it was incorporated, and under and pursuant to its plan and agreement of incorporation aforesaid, and the statute hereinbefore referred to, under which it was incorporated, and that for the pur- pose of securing the payment of the said debt and obligations so contracted by it, the said Sheffield Manufacturing Company duly determined and resolved to, and it did issue its bonds in denomina- tions of fifty (50), one hundred (100), five hundred (500), and one thousand (1,000), dollars, with interest coupons thereto attached, in all not exceeding the sum of four hundred and fifty thousand dollars ; that each of said bonds were in words and figures following, subject only to necessary variations as to distinguishing numbers thereof, as follows: (Here insert copy bond.) Plaintiff further, on information and belief, avers that thereafter and on or about the 30th day of August, 1890, the said the Shelifield Manufacturing Company duly made and caused to be executed by its officers, and authenticated by plaintiff as trustee, its several bonds in denominations as above set forth, amounting in the aggregate to the principal sum of $450,000; all of the said bonds being in the words and figures of the bond hereinbefore set forth; subject only to the necessary variations as to the distinguishing amounts and numbers thereof. That said bonds were duly issued and delivered to various persons and corporations for value, and are outstanding obligations held by various persons and corporations to plaintiff unknown, in the sum and amount of $450,000. FORECLOSURE. 469 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. Third. That to secure the payment of the said bonds, with the interest thereon, the said Sheffield Manufacturing Company did duly, and in accordance with its articles of incorporation, and having been thereunto duly authorized, made and caused to be executed by its officers and delivered to this plaintiff, its certain mortgage or deed of trust, bearing date the said 30th day of August, in the year 1890, wherein and whereby it duly granted, bargained, sold, assigned, and conveyed to the plaintiff herein and to his successor, successors and assigns forever, in trust, all the right, title and interest of the said Sheffield Manufacturing Company in and to its charter and its cor- porate powers, rights, privileges and franchises, together with certain lands and premises situated, lying and being on the south side of Esopus creek, in the village of Saugerties, town of Saugerties, Ulster county. New York, together with all the factories, dwellings, build- ings, store-houses, machine shops, docks and wharves thereon; also the right to use the waters of the said creek for all the purposes of power used in manufacturing, milling and other pur- poses, which were in the mortgage or deed of trust herein referred to, more specifically set forth and described; also all boilers, engines, fixtures, machinery, mill gearing, shafting, pulleys, belts and appurtenances, either then or theretofore in use, to drive ma- chines, either fixed or movable; all movable machines, all calenders, rolls, ruling machines, tables and shelving, all tools and implements, including the tools and machines in the machine, pipe and carpenter shops; all printing and cutting presses, type, stereotype plates, cast- ings, machinery, tools, tables, cases and furniture connected with printing; all paper box machinery and tools; all envelope machines, machinery, tools for the manufacture of envelopes; all machinery, tool and fixtures for the manufacture of blank books; all office fur- niture; also all boilers, engines, machinery, tools and fixtures which might thereafter be acquired for use in the manufacturing business carried on by the said Sheffield Manufacturing Company. That the said mortgage duly covered and affected, and there was duly described therein, in addition to the property hereinbefore referred to, certain real estate and appurtenances, with water and other rights, all of which were owned and possessed by said the Sheffield Manufacturing Company. That all of its real estate, appur- tenances, water rights and property, other than its personal property and franchises, were covered and affected by other mortgages prior in lien to the mortgage in this complaint referred to, and as plaintiff, on information and belief, avers, such proceedings have been had under said prior mortgages and otherwise, that the said defendant, the Sheffield Manufacturing Company, now has, owns and possesses no property subject to the mortgage herein referred to, excepting the personal property, together with its franchises hereinabove referred to. Fourth. That the said mortgage or deed of trust contained the following trusts, covenants and conditions, that is to say: That the property, rights, privileges and franchises were conveyed to this plaintiff as trustee, nevertheless for the equal and pro rata benefit and security of the several persons or corporations, who and which 470 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. might be or become the holder of any of the bonds thereby secured, and further upon the following express conditions, in said mortgage, and especially in article 2 thereof contained, and set forth: If coupons for the payment of semi-annual interest on the bonds are presented for payment at the place where they are payable when due, or at any time when they are due, and payment of the coupons so presented shall be refused and neglected for a period of six months thereafter at the place where they are payable, then, at the option of the party of the second part hereto (of this plaintiff), his successor or successors, the whole of the principal of the bonds hereby secured, and the accrued interest shall become immediately due, payable and collectible, anything in the said bonds or herein to the contrary not- withstanding. And the said party of the second part hereto (the plaintiff'), his successor or successors, may thereupon immediately proceed and cause the said premises to be subjected to the payment of the said debt in the manner hereinafter provided. And the said mortgage further provided that in case default should be made in payment of the coupons attached to the said bond, or any of them when due, and payment refused or neglected for six months after demand of payment duly made, that it should be lawful for the plaintiff, its successor and successors, to foreclose the said mortgage and to sell or procure the property to be sold and the moneys received from such sale, after deducting all costs and expenses appertaining thereto, including taxes, assessments, insurance and repairs as well as a just compensation to this plaintiff and his attor- neys for his and their services, to apply the balance, or so much thereof as may be necessary, of the proceeds of the said sale to the payment of the coupons and interest then due and the principal of said bonds, but if said moneys should be insufficient to make such payment in full, then to pay the same ratably and proportionately to the respective owners or holders of said coupons and bonds, and if any balance remained, then to pay the same over to the Sheffield Manufacturing Company, or to whomsoever shall be equitably or lawfully entitled to the same or as some court of competent juris- diction shall direct. And it was in and by said mortgage further provided, that if the sale thereunder was made, pursuant to the judgment or decree of any court in an action for the foreclosure thereof, the sale to be made in such manner and upon such terms as the court may in its discretion adjudge in and by said judgment. Fifth. And it was in and by the said mortgage duly covenanted on the part of the defendant, the Sheffield Manufacturing Company, that it would well and truly pay or cause to be paid to the respective hold- ers of coupons and bonds, the principal of each of the said bonds secured thereby, together with interest thereon as the same should, from time to time, become due and payable, according to the tenor of said bonds and the coupons accompanying the said bonds respectively. Sixth. It was further in and by said mortgage provided, that the said mortgagor, the Sheffield Manufacturing Company, should have FORECLOSURE. 471 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. the right, from time to time, in its discretion, to dispose of such portion or portions of its mill, boilers, engines, tools, implements, furniture and fixtures at any time held or acquired for use in its manufacturing business as may become unfit for use, replacing the same by new, more suitable and improved machinery which shall then become subject to the operation of said mortgage; plaintiff, upon information and belief, alleges that since the making of said mortgage, and pursuant to the clause above referred to, the Sheffield Manufacturing Company has disposed of certain of said property, replacing the same by new, more suitable and improved machinery, and that the same and all of its present owned machinery, tools and fixtures are covered and affected by the said mortgage. Seventh. That plaintiff duly accepted the trust created in and by the said deed of trust, and the said deed of trust or mortgage, to- gether with the acceptance thereof, was duly recorded in the office of the cleric of the county of Ulster, on the 30th day of August, in the year 1890, in Book No. 204, page 25. Eighth. That on the first day of August, in the year 1894, the interest warrants or coupons due upon the bonds aforesaid, and referred to in said mortgage, were duly presented to the defendant for payment, and payment then and there demanded, which was refused. That the same have remained unpaid for a period of six months thereafter and after the said demands. That the plaintiff has and does elect that the whole sum owing under and upon the said bonds, and secured by the said mortgage or deed of trust, be and become due and payable forthwith, and that thereby and by the provisions of the said bond and mortgage the whole principal thereof became due and payable before the com- mencement of this action; and that the defendant, the Sheffield Manufacturing Company, has failed to comply with the terms and provisions of the said bonds and mortgage by neglecting to pay the interest coupons or warrants due as aforesaid, and the principal sum and amount due on the mortgage aforesaid. Ninth. That there is due and owing on the said bonds and mort- gage to the various persons and (Corporations owning, holding and representing the same the sum of $450,000 of principal, together with the interest thereon from the ist day of February, 1894, no part of which has been paid . Tenth. Plaintiff further shows that no proceedings have been had at law or otherwise, and that no other action has been brought for the recovery of said sums required to be paid in and by said bonds, and secured to be paid by the said mortgage or deed of trust hereto- fore set forth, or any part thereof. Wherefore, the plaintiff demands judgment against the defendant: First. That the defendant in this action and all persons and parties claiming or to claim under it, subsequent to the commencement of this action and the filing of the notice of the pendency of this action, may be barred and foreclosed of and from all right, title, claim, lien, interest, benefit or equity of redemption in or to the said mortgage property, or any part thereof. 472 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. Second. That a referee be appointed to take all pro fs and ac- countings herein, and to find and report such facts as to the owners, holders and representatives of said bonds and coupons, together with the amounts due, owing or unpaid thereon, and such other facts as may be necessary. Third. That the said mortgaged property covered by and described in said mortgage or deed of trust, may be adjudged and decreed to be sold according to law and the practice of this court. That the moneys to be derived from the sale be disposed of in accordance with the order of this court; that out of the moneys there first be paid all taxes or assessments which are or may be a lien upon the said premises; that next there may be paid the costs, allow- ances and expenses of this action, and the costs and expenses of the sale of the mortgaged property under a judgment which may be given in this action; that there next be paid the fees, commissions and necessary disbursements of the plaintiff, the trustee, and the receiver in this action, if one should be appointed; that the balance of the moneys may be applied to the payment of the amounts owing to the bondholders of the bonds and coupons which are attached to said bonds, and if there shall not be sufficient to pay them in full, then that they may be paid pro rata and proportionately as far as the moneys will go; and if there shall be any surplus after paying said bonds, coupons and interest in full, then that such surplus be paid over to the defendant, the Sheffield Manufacturing Company, or to whomsoever it shall equitably and lawfully belong as may be directed by this court; and further that the defendant, the Sheffield Manu- facturing Company, may be adjuged to pay any deficiency which may remain after applying all of the moneys applicable to the pay- ments aforesaid. That the plaintiff may have such other or further relief as to the court may seem proper in the premises, together with the costs in this action. ROSENDALE & HESSBERG, Attorneys for Plaintiff. Precedent for Evidence before Referee. SUPREME COURT — Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufactur- ing Company, agst. SHEFFIELD MANUFACTURING COM- PANY. Hearing before Henry A. Peckham, Esq., who was appointed referee pursuant to an order made at Special Term of the Supreme Court, FORECLOSURE. 473 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. held at the city hall, in the city of Albany, on the 29th day of March, 1895. Statutory oath taken by referee and hereto annexed. Appearances : Rosendale & Hessberg, attorneys for plaintiff. Howard Gillespy, being duly sworn, testifies as follows: I reside in the village of Saugerties, county of Ulster and State of New York. I have kept an account for the plaintiff and also for the defendant of all of the bonds issued under the mortgage set forth in the com- plaint herein. The defendant is a domestic corporation and was organized and incorporated under the provision of chapter 193 of the Laws of 1890. The defendant's predecessor, J. B. Sheffield & Son, was also a cor- poration and was found to be insolvent and wound up, and the pres- ent corporation was formed by a reorganization committee pursuant to the act of the legislature which I have just referred to. (Mortgage shown witness.) This mortgage, dated the 30th day of August, 1890, made by the Sheffield Manufacturing Company to Charles A. Spalding as trustee for the benefit of the holders of the bonds secured by said mortgage, was executed by the defendant, and the bonds provided for in and by the terms of said mortgage, were duly issued and delivered to various persons and corporations in consideration of the outstanding obligations held by such persons and corporations of said corpora- tion known as J. B. Sheffield & Son. Mortgage dated August 30th, 1890, and recorded in the Ulster county clerk's office on the 30th day of August, 1890, in Book 204 of Mortgages at page 25, offered and received in evidence, and marked exhibit " A." All of the fixtures and property described in the complaint herein are in the factories, building, store-houses and shops referred to in the complaint, with the exception of some machines which have been sold, and the proceeds of such sale, however, were paid over to the plaintiff as trustee to be applied towards discharging the bonds issued under the mortgage. The total sum so paid out of the pro- ceeds of said sales amount to five thousand six hundred and six -^^^ dollars. The bonds outstanding are as follows: 132 bonds of $50 each amounting to $6, 600 319 bonds of $100 each amounting to . 31, 900 47 bonds of^$5oo each amounting to 23, 500 384 bonds of $1,000 each amounting to 384, 000 Total $446, 000 Six hundred and fifty dollars of the bonds originally issued were surrendered and canceled for old machinery delivered, and $3,350 474 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. of said bonds were surrendered for cancellation by the owners, they having received dividends from debtors of the Sheffield & Son cor- poration sufficient to pay such bonds, said bonds having been issued to them conditionally under the reorganization plan. Hence only bonds amounting in the aggregate to $446,000 are now outstanding. The coupons or interest warrants annexed to all of said bonds which became due on the ist day of August, 1894, are in default and were not paid when they became due and still remain unpaid. Payment was duly demanded of defendant and refused. The interest war- rants or coupons remained unpaid for six months after they became due. Mr. Spalding thereupon some time subsequent to February ist, 1895, elected that the whole sum owing upon and under said bonds, and secured by the mortgage described in the complaint, should be deemed due and payable. The defendant failed to pay any part of the principal so falling due under the plaintiff's election, and the only payments which have been made upon the mortgage are those above stated, being the proceeds of the sale of machinery, which was not required by the defendant. There is due the various persons and corporations owning and holding the bonds issued as aforesaid, the sum of four hundred and forty-six thousand dollars ($446,000) of principal. The interest due thereon under the warrants or coupons remaining unpaid from the ist day of February, 1894, to the date hereof, at five per cent amounts to $26,016.66, making the total sum due of principal and interest $472,016.66. From this sum should be deducted the payments of $5,606.25 above referred to, leaving a balance due of $466,410.41. No proceedings having been had at law, or otherwise, to my knowl- edge, and no action has been brought for the recovery of the sums required to be paid in and by the bonds secured to be paid by the mortgage or deed of trust referred to in the complaint. The real estate covered by the mortgage referred to in the com- plaint, and water rights and property, other than the personal prop- erty, were covered and affected by other mortgages prior in lien to the mortgage in the complaint referred to, and such proceedings have been had under said prior mortgages and otherwise that the defendant now has, owns and possesses substantially no real property subject to the mortgage referred to in the complaint. H. GILLESPY. Read over, subscribed and sworn to be- for me, this 30th day of March, 1895. H. A. PECKHAM, Referee. FORECLOSURE. 475 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. Precedent for Report of Referee. SUPREME COURT — Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufac- turing Company, agsL SHEFFIELD MANUFACTURING COM- PANY. To Supreme Court:. In pursuance of an order of this court made in the above-entitled action, on the 30th day of March, 1895, by which it was referred to the undersigned, referee, to ascertain and compute the amout due to the plaintiff upon and by virtue of the bonds, interest, warrants or coupons and the mortgage mentioned and set forth in the complaint herein, which is filed in this action, and also to take proof of the facts and circumstances stated in the complaint, I do report that I took the oath required by the rules and practice of this court which is hereto annexed ; thati was attended by Rosendale & Hessberg, the attorneys for the plaintiff herein; that I took proof of the facts and circumstances as required by the order appointing me, which are hereto annexed and form a part of my report; that I have computed and ascertained the amount due to the plaintiff as aforesaid upon the bonds, interest, warrants or coupons and mortgage set forth and referred to in the complaint, and I find and accordingly report that there is due to the plaintiff for principal and interest on said interest, warrants or coupons under the said bonds and mortgage, at the date of this mv report, the sum of four hundred and sixty-six thousand, four hundred and ten and yrrV dollars ($466,410.41). Schedule " A," hereto annexed, shows a statement of the amount due for principal and interest respectively, the period of computa- tion of the interest, and its rate. I further report that the interest, warrants or coupons annexed to the bonds issued under the mortgage set forth in the complaint, which became due and payable on the ist day of August, 1894, all remain unpaid, and that they remained unpaid and in arrear for a period of six months from the said ist day of August, 1894, at the time of the commencement of the action for the foreclosure of the mortgage set forth in the complaint. That demand was duly made for the payment of the said interest, warrants or coupons due upon the said ist day of August, 1894, at the office of the defendant at Saugerties, New York, and that payment was refused. And I further find and report that the said plaintiff, as trustee under the mortgage or deed of trust in the complaint referred to, 476 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. and according to the terms and provisions of the said mortgage, exercised his option and declared the whole amount of all the bonds referred to in the complaint to be due and payable, by reason of the default upon the interest, warrants or coupons payable on said ist day of August, 1894, and by reason of the continuance of said de- fault for a period of more than six months after said ist day of August, 1894. And I further find and report that the facts and circumstances stated in said complaint are in all respects true; the schedule hereto annexed shows the payments which have been made on account of the demands mentioned in the complaint and which ought to be credited thereon. Dated April ist, 1895. H. A. PECKHAM, Referee, (Attach schedule.) Order Appointing Referee to Sell. At a Special Term of the Supreme Court of the State of New York, held at the city hall, in the city of Albany, on the ist day of April, 1895. Present — Hon. D. Cady Herrick, Justice. SUPREME COURT — Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed OF Trust Executed by the Sheffield Manufacturing Company, agst. SHEFFIELD MANUFACTURING COMPANY. The summons and complaint in this action having been served on the defendant more than twenty days since, and the defendant not having appeared, answered or demurred herein : Now, on reading and filing the affidavit of Edgar M. Haines, the managing clerk for the attorneys for the plaintiff herein, proving that the complaint in this action and due notice of the pendency of this action were duly filed in the office of the clerk of the county of Ulster, on the 8th day of February, 1895. That there are no infants or absentees. That the defendant is in default and has failed to appear herein. And an order of reference having been made to compute the amount due to the plaintiff, upon the bonds and mort- gage set forth and referred to in the complaint. On reading and filing the report of the referee named in the order of reference, by which report bearing date the ist day of April, 1895, it appears that the interest warrants or coupons due upon the bonds FORECLOSURE. 477 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. referred to in the said mortgage and in the complaint herein, and which according to the said warrants or coupons became due and payable on the ist day of August, 1894, were all unpaid, and that all of the said interest warrants or coupons which became due and payable upon the ist day of August, 1894, remained unpaid and in arrears for a period of six months from the said ist day of August, 1894. That demand was duly made for the payment of the said interest warrants or coupons due upon the said ist day of August, 1894, at the office of the defendant at Saugerties, New York, which payment was then and there refused, but the same remain wholly unpaid. And it further appearing by the report of said referee that the said plaintiff herein, as trustee under the mortgage or deed of trust in the complaint referred to, and according to the terms and provisions thereof has exercised his option and declared the whole amount of all the bonds referred to in the complaint to be due and payable by reason of the default upon the interest warrants or coupons payable on the said ist day of August, 1894, and a continuance of said default for a period of six months, and that no part of the principal of the said bonds has been paid, except the sum of $5,606.25, and that the whole amount of said bonds became due and payable on said ist day of February, 1894, except said sum of $5,606.25. And it further appearing by the report of the said referee that the facts set forth in the complaint herein are true, and that there is due of principal, secured by the said mortgage or deed of trust, the sum of four hundred and forty-six thousand dollars ($446,000) of principal (less said sum of $5,606.25) with interest thereon from the ist day of February, 1894, making in all the sum of $466,410.41. Now, on motion of Rosendale & Hessberg, the attorneys for the plaintiff herein, It is adjudged that the mortgaged property described in the com- plaint in this action (insert description) be sold at public auction in the village of Saugerties, county of Ulster and State of New York, by or under the direction of John W. Searing, Esq., of Kingston, Ulster county, New York, who is hereby appointed referee for that purpose ; that the said referee give public notice of the time and place of such sale according to law and the practice of this court; that the plaintiff, or any other party, may become a purchaser on such sale; that the said referee execute to the purchaser or purchasers a certifi- cate or bill of sale or other instrument which may be proper or neces- sary to convey the title of the property so to be sold; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, the said referee pay to the plaintiff, or his attorneys, the sum of $100.30, adjudged to the plaintiff' for costs and charges in this action, and also the sum $200, which is hereby allowed and adjudged to the plaintiff as and for an extra allowance in addition to said costs, making together the sum $300.30, with interest from the date hereof; and also the amount so reported due as aforesaid, together with legal interest thereon from the date of the said report, or so much thereof as the purchase money of the mortgaged property will pay of the same, take a receipt therefor and 4/8 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. file it with his report of sale; that he pay over the surplus moneys arising from the sale, if any there should be, to the tresasurer of the county of Ulster, within five days after the same be received and ascertainable, subject to the further order of the court; that he make a report of such sale and file it with the clerk of this court with all convenient speed; that if the proceeds of such sale be insufficient to pay the amount so reported to be due the plaintiff, with interest and costs aforesaid, the said referee specify the amount of such defi- ciency in the report of sale, and that the defendant, the Sheffield Manufacturing Company, pay to the plaintiff the residue of the debt remaining unsatisfied after a sale of the mortgaged property and the application of the proceeds pursuant to the directions contained herein, and that the plaintiff have execution therefor; and that the purchaser or purchasers at such sale be given the possession of said property on production of the referee's certificate or bill of sale or other instruments which may be executed by said referee pursuant to his decree and the production of a certified copy of the order of this court confirming the report of said sale. It is further adjudged that the defendant and all persons claiming under it, after the filing of such notice of the pendency of this action, be forever barred and foreclosed of all right, title, interest and equity of redemption in the said mortgaged property, or any part thereof. It is further adjudged that the said referee may accept in lieu of cash upon said sale, (after received a sum sufficient to pay the costs, charges and disbursements hereinbefore directed to be made), the voucher, receipt or acquittance of any bond or bond- holders or any committe or trustee of all or any of the bondholders representing the bonds referred to in the mortgage described in the complaint herein and referred to in the judgment, for such sum or sums as would be represented by the said bond or bonds upon a dis- tribution of the proceeds of said sale ratably and proportionately among all of the bondholders after deducting the costs, charges and expenses hereinbefore referred to. The said receipt, voucher or acquittance to stand and be in lieu of a similar cash amount which would be distributed or be paid as a dividend upon and to such bond by the plaintiff or otherwise as trustee for said bondholders upon a sale of the property, and the amount of such receipt or voucher is to be charged to each of said bonds as a payment to that amount received thereon. It is further adjudged and decreed that the said plaintiff, or said referee, or their successors, or any person in their behalf, after the confirmation of the sale aforesaid, may at the foot of this decree apply to the court for such other or further order or supplemental judgment as may be deemed proper and necessary for the purpose of ascertaining the names of the owners, holders and representatives of ?aid bonds and coupons, together with the amount due, owing and unpaid thereon, and for the purpose of ascertaining the names of the persons and corporations who are entitled to share in the distribution of the said proceeds of the sale hereinbefore directed to be made, or who are entitled to be paid the sum due and owing with accrued interest to the date of said payment upon the respec- FORECLOSURE. 479 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. tive bonds issued and outstanding in the mortgages referred to in the complaint and judgment herein, or for such other or further order in the premises as may be or become necessary from time to time. Clerk of the county of Ulster will enter. D. CADY HERRICK, Justice Supreme Court. Order Appointing Referee to take Proof of Ownership of Bonds. At a Special Term of the Supreme Court, held at the city hall, in the city of Albany, on the 25th day of June, 1895. Present — Hon. 1). Cady Herrick, Justice. SUPREME COURT — Ulster Cou.nty. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed OF Trust Executed by the Sheffield Manufacturing Company, agst. SHEFFIELD MANUFACTURING COMPANY. On reading and filing the report of John W. Searing, Esq., the referee heretofore appointed herein, dated the 24th day of .\pril, 1895, of the sale of the mortgaged property mentioned and described in the complaint in this action, and on motion of Rosendale & Hess- berg, the attorneys for the plaintiff. It is ordered, that the said report be, and the same hereby is, in all things confirmed. And it appearing from the report of Henry A. Peckham, Esq., appointed referee to compute the amount due the plaintiff by the order of this court, made on the 29th day of March, 1895, and entered in the Ulster county clerk's office on the 2d day of .'Vpril, 1895, that the plaintiff herein has in his possession and that there has been paid to him the sum of five thousand, six hundred and six dollars and twenty-five cents ($5,606.25), being the proceeds of the property sold by the defendant and covered by the mortgage described in the complaint and judgment herein. And it further appearing that it was adjudged and decreed by the judgment herein, entered in the Ulster county clerk's office on the 2d day of April, 1895, that the plaintiff herein, or any person in his behalf, after the confirmation of the sale aforesaid, might at the foot of the said decree, apply to the court for such other, further or sup- plemental judgment as might be deemed proper and necessary in the premises. 48o FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. It is hereby further ordered, that the said Charles A. Spalding, as trustee for the benefit of the holders of the bonds secured by the mortgage referred to in the complaint herein, be, and he hereby is, ordered and directed to transfer and pay to John W. Searing, Esq., the referee designated to sell the property described in the judg- ment herein, the said sum of five thousand, six hundred and six dol- lars and twenty-five cents ($5,606.25), and that said referee hold the same for distribution among the bondholders entitled thereto ratably and proportionately and in the same manner that the moneys realized upon the sale of the property described in said judgment is to be distributed. It is further ordered, that upon the payment so directed to be made by said Charles A. Spalding, as trustee as aforesaid, he be dis- charged from all claims, demands and liabilities whatsoever to the bondholders, or either of them, for whose benefit said mortgage was executed to the plaintiff, or from any claims, demands or liabilities arising or which might arise out of his trusteeship under said mort- gage described in the complaint herein. It is further ordered, that said John W. Searing, as such referee as aforesaid, give notice to the owners and holders of the bonds issued under the mortgage described in the complaint herein, that they make proof before him at the office of the plaintiff's attorneys, in the city of Albany, on the 24th day of July, 1895, at ten o'clock in the forenoon of that day, of their ownership of said bonds; that said notice shall be given by mailing a copy thereof to each bondholder whose name appears on the books of the defendant as the owner or holder of any of said bonds at least twenty-one days prior to said date of hearing, and by publishing such notice in the Saugerties Post and the New York Commercial Advertiser once a week for three successive weeks immediately preceding the date of said hearing. It is further ordered, that the said referee proceed at the time and place stated in said notice to take proof of the ownership of said bonds, and each of them, and that after the payment of the attorneys and counsel fees and the costs, charges and expenses herein, he dis- tribute the balance of the moneys in his hands ratably and propor- tionately among all of the bondholders of the said corporation, in accordance with the amount of bonds held by each of said persons based upon the par value of said bonds and that he take a voucher for each payment made. It is further ordered, that the notice herein required to be given and the payment hereby directed to be made, shall be given and the payment shall be made to the committee for sundry bondholders which represent bondholders, a list of whose names with a statement of the amount of their bonds, is attached to the schedule annexed to the report of the referee, dated the 24th day of April, 1895, instead of the bondholders represented by said committee, and that the voucher of said committee, or a majority of them, shall be deemed and hereby is deemed a proper payment to and on behalf of such bondholders who are represented by said committee as aforesaid. _ It is further ordered, that the said referee be, and he hereby is, required to make a report of his proceedings to the court, and that FORECLOSURE. 48 1 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. upon the confirmation thereof he be discharged from all claims, demands and liabilities whatsoever to any or all of said bondholders of said corporation. It is further ordered, that in the event of any bondholder failing to make proof of ownership as herein required, and who may be or become entitled to any dividend herein, that said referee be, and he hereby is, ordered and directed to deposit the dividend or payment so to be made to said bondholders with the treasurer of the county of Ulster, to the credit of said bondholder or bondholders entitled to the same, subject to the further order of the court in the premises. It is further ordered, that the plaintiff herein, or said referee, or their successors, or any person in their behalf, may apply to the court for such other or further order in the premises as may be or become necessary from time to time. Enter in Ulster county. JAS. D. AVALSH, Clerk. Notice to Bondholders. SUPREME COURT — Ulster Couxty. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufacturing Company, agst. SHEFFIELD MANUFACTURING COM- PANY. Pursuant to an order of the Supreme Court, granted at a Special Term thereof, held at the city hall, in the city of Albany, on the 25th day of June, 1895, and entered in the Ulster county clerk's office on the 27th day of June, 1895, notice is hereby given, that all persons holding bonds of the Sheffield Manufacturing Company are hereby required to come in and present their bonds for proof before me, at the office of Rosendale &: Hessberg, 91 State street, in the city of Albany, on the 24th day of July, 1895, at ten o'clock in the forenoon of that day. Dated, June 27th, 1895. J- W. SEARING, Referee. Rosendale & Hessberg, Plaintiff's Attorneys. [Special Actions — 31.] 482 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. Referee's Report as to Ownership of Bonds. SUPREME COURT — Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufactur- ing Company, SHEFFIELD MANUFACTURING COM- PANY. The undersigned, the referee duly appointed herein, by the judg- ment granted on the ist day of April, 1895, and entered in the Ulster county clerk's ofifice on the second day of April, 1895, and who duly made a report of sale herein, dated the 24th day of April, 1895, and which was duly confirmed by an order of this court granted on the 25th day of June, 1895, and entered in the Ulster county clerk's office on the 27th day of June, 1895 ; and who in and by the terms of the said order of confirmation was continued as referee, for the pur- poses in said order set forth, respectfully reports as follows: I. That pursuant to the terms and provisions of the said order made herein, at a Special Term of the Supreme Court, held at the city hall, in the city of Albany, on the 25th day of June, 1895, and entered in the Ulster county clerk's ofifice on the 27th day of June^ 1895, he gave notice to the owners and holders of the bonds issued under the mortgage described in the complaint herein, that they would be required to present their bonds for proof before the under- signed, at the office of Rosendale & Hessberg, No. 91 State street, in the city of Albany, on the 24th day of July, 1895, at ten o'clock in the forenoon of that day, that said notice was given by mailing a copy to each bondholder, whose name appeared on the books of the Sheffield Manufacturing Company, the defendant herein, as the owner or holder of any of said bonds at least twenty-one days prior to the said date of hearing and by publishing said notice in the Saugerties Post and New York Commercial Advertiser, once a week for three successive weeks immediately preceding the date of said hearing; that proof of mailing and proofs of publication are hereto annexed and form a part of this report. II. That at the time and place set forth in said notice, the under- signed duly appeared and took the oath required by law, which is hereto annexed and forms a part of this report. That I was attended on said hearing by Messrs. Rosendale & Hessberg, the attorneys for plaintiff; by Charles Davis, attorney for L. Newman; by S. W. Brown, attorney for John Kissock & Com- pany, and by Mrs. Benjamin Harmore in person; the parties so appearing herein doing so only to make proof of bonds held by them, FORECLOSURE. 483 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. or their clients, and waiving the service of all future and further notices herein. That I proceeded to take the documentary and oral proofs pre- sented by the said parties in interest, and that the testimony so taken by me is hereto annexed and forms a part of this my report. That schedule " I," hereto annexed and which forms a part hereof, shows a list of the owners of bonds with their last known place of residence, and the amount of bonds respectively issued to each holder. That the total par or face value of the bonds so proved as aforesaid, is the sum of four hundred and forty-one thousand, two hundred and fifty dollars ($441,250). That schedule " B/' hereto annexed and which forms a part of this my report, sets forth the names of the holders of the bonds and their last known place of residence, and the amount of bonds held by each, as appears from the books of the company; such bond- holders not having made the proof of ownership thereof, but who claim to be the present owners of such outstanding bonds, so far as the undersigned has been able to ascertain; that the total par or face value of said bonds is the sum of four thousand seven hundred and fifty dollars ($4,750). That the total par or face value of the bonds issued under the mortgage set forth in the complaint, and referred to in the judg- ment herein, is the sum of four hundred and forty-six thousand dol- lars ($446,000.) All of which is respectfully submitted April 16,1896. JOHN W. SEARING, (Attach schedules.) Referee. Order to Pay Dividend. At a Special Term of the Supreme Court of the State of New York, held at chambers in the city of Albany, on the 17 day of Aprif 1896. Present — Hon. Alden Chester, Justice. SUPREME COURT— Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufactur- ing Company agst. SHEFFIELD MANUFACTURING COM- PANY. On reading and filing the report of John W. Searing, Esq., the referee heretofore duly appointed herein, dated the i6th day of April, 1896, and on motion of Rosendale & Hessberg, the attorneys for plaintift ; it is 484 FORECLOSURE. Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. Ordered, that said report be and the same is hereby in all things confirmed. (Here insert allowance to counsel for services on reference and provide for disbursements.) It is further ordered, that said referee be and he hereby is directed and empowered to pay a first and final dividend of 32^%^^ per centum to the bondholders of said corporation, and that said dividend be paid to the persons and in the amount set forth in the schedule hereto annexed and marked " A " and forming part of this order. It is further ordered that said dividend as aforesaid be paid to the said bondholders or said committee only upon their giving said referee a proper voucher therefor, and upon their surrendering the bonds issued under the mortgage described in the judgment herein. It is further ordered, that in the event of any bondholder failing to surrender the bond or bonds held by him, that said referee be and he hereby is ordered and directed to deposit the dividend or payment so to be made to said bondholder with the treasurer of the county of Ulster, to the credit of said bondholder or bondholders entitled to the same, subject to the further order of the court in the premises. It is further ordered, that said referee file a further report showing his compliance with the terms and provisions of this order, and that upon the filing of his vouchers and the confirmation of his report, the said referee be discharged from all further demands, claims or liens to any, either or all of said bondholders of said corporation. It is further ordered, that the plaintiff herein, or the referee, or their successors, or any person in their behalf, may apply to this court for such other or further order in the premises as may be deemed proper or necessary from time to time. The clerk of Ulster county will enter. ALDEN CHESTER, Jus. Sup. Ct. Final Report of Referee. SUPREME COURT — Ulster County. CHARLES A. SPALDING, as Trustee for THE Benefit of the Holders of the Bonds Secured by a Mortgage or Deed of Trust Executed by the Sheffield Manufactur- ing Company, SHEFFIELD agst. MANUFACTURING COM- PANY. To the Supreme Court: The undersigned, the referee in the above-entitled action, respect- fully reports, that pursuant to the final order made herein at a 11 FORECLOSURE. 485 Art. 12. Precedents for Foreclosure of Mortgage Given to Secure Bonds. Special Term of the Supreme Court of the State of New York, held at chambers, in the city of Albany, on the 17th day of April, 1896, and entered in the Uister county clerk's office on the 20th day of April, 1896, he proceeded to make a full and final distribution of all the moneys in his hands as such referee. That he duly paid a dividend of 32 ^^//p per centum to the bond- holders of said corporation, except those hereinafter mentioned, and that he has taken a proper voucher therefor; that all of said bond- holders who have accepted said dividend have surrendered to the undersigned their bonds which were held by them; that the sum so paid, and the bondholders to whom paid, are as follows, viz: That the only bondholders who failed to take the dividend ordered and directed to be paid to them, are as follows, viz: NAME. DIVIDEND. M. Fitzgibbon $32 98 Jam.es A. Townsend 32 98 $65 96 and to cover said dividend I have deposited with George Deyo, as treasurer of the county of Ulster, the sum of $65.96, and to the credit of said bondholders, and have taken his voucher therefor; said deposit having been made subject to the further order and direction of the court in the premises. That all of the moneys so deposited and distributed by me amount to the sum of $147,108.77. That herewith I return and duly file all the vouchers taken by me as aforesaid. That I have now fully and entirely distributed all of the moneys and assets in my hands. And the undersigned makes this report pursuant to the terms and provisions of the order aforesaid, for the purpose of duly filing the same in the Ulster county clerk's office. Dated at Kingston, May 29th, 1896. JOHN W. SEARING, Referee. (Add verification.) CHAPTER V. ACTION TO COMPEL DETERMINATION OF A CLAIM TO REAL PROPERTY. PAGE. Article i . Nature and object of action 486 2. When action maintained and what must be alleged. Sees. 1638, 1639, 1650 487 3. Proceedings after issue joined. Sees. 1640, 1641, 1642, 1643 493 4. Judgment and its effect. Sees. 1644, 1645, 1646.. 495 5. Proceedings when against woman claiming dower. Sees. 1647, 1648, 1649 497 Sections of the Code of Procedure and Where Found in this Chapter. sec. art. page. 1638. Who may maintain action 2 487 1639. Complaint 2 487 1640. Proceedings when defendant denies plaintiff's title 3 493 1641. Id. ; when he pleads title 3 493 1642. Proceedings the same as in ejectment 3 493 1643. Proceedings when defendant claims in reversion or remainder. 3 494 1644. Judgment awarding defendant possession, etc 4 495 1645. Judgment for plaintiff 4 49^ 1646. Effect of judgment 4 49^ 1647. Action to determine widow's dower 5 497 1648. Proceedings, if plaintiff admits defendant's claim 5 497 1649. Id. ; when defendant's claim is denied 5 49^ 1650. This article applies to corporations 2 498 ARTICLE I. Nature and Object of Action. To remedy the necessity for some form of procedure by which claim of title to real property could be quieted by action taken on behalf of the owner in possession, the Revised Statutes pro- vided a remedy by way of proceedings for determination of claims to real estate, to be taken by any person in possession, claiming the fee for life, or for a certain term, by service of notice upon the claimant. The old Code, by § 449- enacted that these proceed- ings might be prosecuted by action, and from this arose much confusion, it being held in Crane v. Sazvyer, 5 How. 372, that the section was inoperative. Subsequently it was held in Barnard [486] TO COMPEL DETERMINATION OF A CLAIM TO REALTY. 487 Art. 2. When Action Maintained, and What Must be Alleged. V. Siinms, 42 Barb. 304; Fisher v. Hepburn, 48' N. Y. 51, that either the remedy provided by the Revised Statutes, or by the Code, might be prosecuted. It was held in the latter case and in Biirnham v. Onderdonk, 41 N. Y. 425, to be a special proceeding under the former Code, and not an action. Nearly all of the sections relating to the action to compel the determination of a claim to real property were amended in 1891. In this connection attention is called to the provisions of chapter 503 of the Laws of 1890, entitled "An Act to quiet the title to real property in certain cases conveyed pursuant to judicial decree, which decree had been lost or destroyed." This act provides for a petition to the Supreme Court, an order for publication and notice, and inquiry and final order in the matter, and for the entry of the order as well as for the recording and indexing of the sheriff's or referee's deed of the premises. ARTICLE 11. When Action Maintained, and .What Must be Al- leged. §§ 1638, 1639, 1650. § 1638. [A'md, 1891.] Who may maintain action. Where a person has been, or he and those whose estate he has, have been for one year in possession of real property, or of any undivided interest therein, claiming it in fee, or for life, or for a term of years not less than ten, he may maintain an action against any other person to compel the determination of any claim adverse to that of the plaintiff which the defendant makes to any estate in that property in fee, or for life, or for a term of years not less than ten, in pos- session, reversion or remainder, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands or not, and also including any lien or incumbrance upon said property, of the amount or value of not less than two hundred and fifty dol- lars. But this section does not apply to a claim for dower. § 1639. fAm'd, 1891.] Complaint. The complaint in such an action must set forth facts showing: 1. The plaintiff's right to the real property ; whether his estate therein is in fee, or for life, or for a term of years not less than ten, and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him. 2. That the property, at the commencement of the action was, and, for the one year next preceding, has been in his possession, or in the possession of him- self and those from whom he derives his title, either as sole tenant, or as joint tenant, or tenant in common with others. 488 TO COMPEL DETERMINATION OF A CLAIM TO REALTY. Art. 2. When Action Maintained, and What Must be Alleged. 3. That the defendant unjustly claims an estate or interest or easement therein, or a lien or incumbrance thereupon of the character specified in the last section. The complaint must describe the property as prescribed in section 1511 of this act. The demand for judgment may be to the effect that the defendant and every person claiming under him be barred from all claim to an estate in the property described in the complaint, or from all claim to an interest or easement therein, or a lien or incumbrance thereupon, of the character specified in the last section, or it may combine two or more of said demands with other demands for appropriate relief. § 1650. [Am'd, 1891.] This article applies to corporations. An action may be maintained, as prescribed in this article, by or against a corporation, or by or against an unincorporated association, as if it was a natural person, or such an action may be maintained by or against the receiver or other successor of any such corporation or association. Section 1638 was amended in 1891 so as to reduce the time of adverse possession to one year instead of three as under the sec- tion as it stood before that time. It also extended the action to undivided and other interests, and struck out the exception of infants and others as defendants, thus rendering obsolete the holding in Wcilcrv. Nevibach, 114 N. Y. 36, 22 St. Rep. 171, 16 Civ. Pro. R. 375, affirming 47 Hun, 166, 13 St. Rep. 451, 13 Civ. Pro. R. 380. That action could not be maintained against an infant, under the provisions of the Code as it stood at the time it was commenced. The possession of a tenant is the possession of his landlord, and a person in the possession of land by his tenant may maintain an action to compel the determination of an adverse claim to it. Kingv. Townscnd, 78 Hun, 380, 29 Supp. 181. Where an unrecorded deed of land has been lost, an action in equity is maintainable to compel the grantor or, after his death, those representing his title, to execute another deed so as to clothe the grantee with the record title. Such an action is not dependent upon the provisions of the Code in reference to the determination of adverse claims to real estate and authorizing actions in cases specified to procure a conveyance, but has its sanction in the general jurisdiction of a court of equity. Kent V. Ciiiircli of St. Michael, 136 N. Y. 10. Where the period between the date of the deed and the com- mencement of the action was less than the statutory period, and the husband of plaintiff had been in possession for many years, defendants moved to dismiss the complaint on the ground that TO COMPEL DETERMINATION OF A CLAIM TO REALTY. 489 Art. 2. When Action Maintained, and What Must be Alleged. plaintiff had not been in possession the length of time required by the Code ; Jicld, that the motion was properly denied, as the plaintiff and the one whose estate she held had been in posses- sion for the required time, which was all that was requisite ; that it was not essential that the possession for that period should have been adverse to defendant's claim. Diefcndorf v. Dicfen- dorf, 132 N. Y. lOO; Dull v. Rohr, 13 Misc. 530. To maintain an action under the provisions of § 1638, plaintiff^must show pos- session under some claim of title. Bohn v. Hatch, 133 N. Y. 64. This is an action given to the holder of the legal title and has no reference to an action for similar relief which proceeds upon equitable grounds. Center v. Weed, 63 Hun, 560, 44 St. Rep. 463. Where the plaintiff in an action under § 1638 has died after a judgment against him had been vacated, the action may be revived against a devisee of the subject-matter of the suit, and he may be compelled to proceed therein. Such devisee takes subject to all the incumbrances upon his devise and cannot com- plain that the order of substitution deprives him of the right to a new trial to which he would be entitled under the Code if the action had not been commenced by his -predecessor. Higgins v. Mayor of New York, 45 St. Rep. 696. Where plaintiff was the owner of property described in the com- plaint and defendant claimed she was divested of that title by deed made by the sheriff, and the plaintiff claims such deed was void, the action comes within § 1638 of the Code. Gihnan v. Tucker, 13 Supp. 804, citing Place v. Riley, 98 N. Y. i. In an action to compel the determination of adverse claims to real property of which plaintiff is in possession claiming to own the fee, an injunction pendente lite will be granted against defend- ants who have brought ejectment suits against plaintiff, affecting such lands, restraining all proceedings in all the suits last named until the final determination of the action. Cuthbert v. Chajwet, 37 St. Rep. 564, affirmed, 37 St. Rep. 941. The proceeding is in no way governed by the principles of the common law, and to give the court jurisdiction the proceeding must come within the provisions of the statute, and the facts bringing it within the statute must appear by the complaint. Bailey v. Sout/nvick, 6 Lans. 356; Austin v. Goodrich, 49 N. Y. 266. The complaint must allege that the defendants unjustly claim title to the premises in question, and must, in its prayer for .490 TO COMPEL DETERMINATION OF A CLAIM TO REALTY. Art. 2. When Action Maintained, and What Must be Alleged. judgment, notify defendants that unless they appear and assert their claim they will be forever barred. A complaint alleging a doubtful will, and asking its construction, is not enough. Bailey V. Briggs, 56 N. Y. 407. The claim sought to be determined must be adverse to that of the party in possession. Onderdonkv. Mott, 34 Barb. 106. It is said, however, that one seized of a vested remainder in fee, the possession being in the tenant for life, can take the proceeding. Barron v. Martcnse, 4 Alb. L. J. 93. The possession must be such as would enable the adverse party to maintain ejectment founded on the fact alone; the rule that possession, once shown, is presumed to continue, is not sufifi- cient. Cleveland v. Crawford, 7 Hun, 616. Legal title, with constructive possession, is not enough. Van Wagener v. Bots- ford, 13 Week. Dig. 381. An actual entry, a possession in fact, as distinguished from a possession in law, or constructive posses- sion, is required. Churchill v. Onderdonk, 59 N. Y. 134. Plain- tiff must have had actual possession for the three years preceding the commencement of the action, and it cannot be maintained where during part of that time the land had been unfenced and vacant. Boyhton v. Wheeler, 6\ N. Y. 521. One in possession for three years may maintain the action and compel the defend- ant to prove his title, but if plaintiff shows only possession under an unfounded claim, evidence of possession and occupation by defendant, prior to plaintiff's entry, is a good defence. Ford v. Belmont, 69 N. Y. 567. Plaintiff is not required to show any- thing more than three years' possession under his title. If the defendant has a title, he is bound to produce and prove it. Car- nardv. Siinms, 42 Barb. 304. Actual possession under claim of title is sufficient to enable a party to maintain the action. Schroeber v. Gurney, 10 Hun, 413. Where plaintiff had been in possession during a short period, when a purchaser at a void tax sale entered before time to redeem had expired, held, such wrongful entry did not interrupt plain- tiff's actual po.ssession, required for the purposes of sustaining the action. Donahue v. O'Connor, 45 Supr. Ct. 278. A tax title is within the statute. Burnham v. Onderdonk, 41 N. Y. 425. The statute does not include setting aside a conveyance upon the ground of the plaintiff's incompetency, nor adjusting the rights of parties under a contract to convey. Peck v. Broivn, 2 Robt. 119; Bridges v. Miller, 2 Duer, 683. The action was not author- TO COMPEL DETERMINATION OF A CLAIM TO REALTY. 49 1 Art. 2. When Action Maintained, and What Must be Alleged. ized against infant defendants before the amendment to § 1638. Bailey v. Briggs, 56 N. Y. 407. Where, in an action brought under § 1638, it is shown that there is danger that the possession of the plaintiff will be unlawfully molested or disturbed during the progress of the action, an injunction may be granted restrain- ing; defendant from such interference. Stannn v. Bostwick, 30 Hun, 70. It is not necessary, in order to state a cause of action under this article, that the plaintiff should allege in the complaint that he is the sole owner in fee of the premises therein described. Sole ownership is fairly implied from an allegation that the plaintiff is the owner in fee, and the allegation that plaintiff has been in pos- session of the land since he acquired his title is equivalent to an allegation that he has been in possession as sole tenant, and where the complaint contained an allegation "that the defendant un- justly claimed an estate or interest therein adverse to that of plaintiff, to wit, the adverse claim that he is seized of said premi- ses in fee," the allegation was not a conclusion, but an allegation of fact, and was sufficient compliance with the provisions of subd, 3, of § 1638. King v. Toxvnscnd, 78 Hun, 380, 29 Supp. 181, reversing 23 Civ. Pro. R. 326. In order to authorize an action of this character it must appear that a claim was made by the defendant before the action was commenced, and the assertion of a claim in the defendant's answer is not sufficient unless the answer admits that the defend- ant claimed an estate in the land prior to the commencement of the action. It is not a sufficient allegation in the complaint that the defendant unjustly claims an estate in the land, to simply allege the matter in those words without stating any facts in sup- port of such allegation. Brown v. Tccl, 59 Hun, 91, 35 St. Rep. 507, affirmed, without opinion, 128 N. Y. 678. A complaint in an action brought to compel the determination of a claim to real property alleging seizin in the plaintiff and actual possession in the premises for upwards of three years pre- vious to the commencement of the action, will bring the case within the provisions of §§ 1638 and 1639. Pearcc v. Moore, 23 St. Rep. 196; s. C. T14 N. Y. 256. A complaint that alleges that "the defendant unjustly claimed an estate in the premises in fee, for life or for a term of years, not less than ten years, or in reversion or remainder by virtue of a 492 TO COMPEL DETERMINATION OF A CLAIM TO REALTY. Art. 2. When Action Maintained, and What Must be Alleged. lease or conveyance made by a party named, which lease or con- veyance and all rights thereunder, the defendant claims to own," was held sufficient. Phillips v. Rome, etc. R. R. Co. 30 St. Rep. 41. The complaint must show the facts bringing the case within the statute. Austin v. Goodrich, 49 N. Y. 266; Bailey v. Briggs, 56 N. Y. 407. The proceedings are governed by the same rule as other actions. Ford v. Belmont, 35 Supr. Ct. 135, affirmed, 69 N. Y. 567. See Hager v. Hager, 38 Barb. 92. Complaint to Compel the Determination of Claim to Real Property. SUPREME COURT. EDWARD STAMM agst. GEORGE H. BOSTWICK. 122 N. Y. 48. The plaintiff complains of the defendant, and alleges that hereto- fore, and on or about the 27th day of October, 1867, one Eliza Anderson died in the city of New York, seized and possessed in fee simple absolute of the following described lands and premises: (Here insert description.) That the said Eliza Anderson left a last will and testament dated August 22, 1866, which was duly admitted to probate, and recorded in the office of the surrogate of the county of New York, in Book No. 172 of Wills, at page 223, on the 7th day of January, 1868, which will was executed in due form of law to pass the title to real estate, and in and by which will the said testatrix devised the premises hereinabove described to her adopted daughter Eliza Anderson, for the term of her natural life, and from and immediately after her death, unto the lawful issue of the said devisee, Eliza Anderson, her surviving, his, her or their heirs and assigns forever; that the said Eliza Anderson, immediately upon the death of the said testatrix, entered into possession of the said land and premises, and continued in possession thereof as such devisee and life tenant until the nth day of February, 1875, when she died; that during the lifetime of the said devisee, Eliza Anderson, and on the 2 2d day of January, 1868, she intermarried with the plaintiff, and thereafter, and on the 6th day of January, 1869, gave birth to a lawfully begotten child, Elizabeth Stamm, and upon her death, as aforesaid, left the said Elizabeth, her sole issue, her surviving; that the said Elizabeth Stamm thereupon entered into possession of the said lands and premises, and continued in possession thereof, as owner in fee simple absolute, under and by virtue of the aforesaid devise, until the loth day of September, 1881, when she died seized thereof, intestate, unmarried, and leaving this plaintiff, her father, her surviving and her TO COMPEL DETERMINATION OF A CLAIM TO REALTY. 493 Art. 3. Proceedings after Issue Joined. sole heir at law; that this plaintiff thereupon entered into possession of the said lands and premises as such sole heir at law of the said Elizabeth Stamm, and has ever since continued, and now is in pos- session thereof; that the plaintiff has an estate in said lands and premises in fee-simple absolute, as the sole heir of the said Elizabeth Stamm, deceased ; that he is now, and he and those whose estate he has, and from whom he derives his title as aforesaid, have been for more than three years last past in the actual possession of said lands and premises, claiming the same in fee; that the above-named defendant unjustly claims an estate in fee, in and to the said lands and premises and molests and interferes with the quiet enjoyment and possession of the same, by this plaintiff. Wherefore, the plain- tiff demands judgment against the said defendant, that he and every and all persons claiming under him be forever barred from all claim to any estate of inheritance, or freehold, or for a term of years, not less than ten, in possession, reversion, or remainder in the lands and premises hereinabove described, and be forever re- strained and enjoined from molesting or in any way interfering with the quiet enjoyment and possession thereof by this plaintiff, and that plaintiff have his costs of the action. COUDERT BROTHERS, Plaintiff's Attorneys. ARTICLE III. Proceedings After Issue Joined. J§ 1640, 1641, 1642, 1643. ^ 1640. Proceedings when defendant denies plaintiff's title. If the defendant, in his answer, puts in issue the matters specified in subdi- vision second of the last section, and succeeds upon that defence, final judgment must be rendered in his favor, dismissing the complaint, and awarding to him costs against the plaintiff. i^ 1641. [Am'd, 1891.] Id. ; when he pleads title. The defendant may, in his answer, either with or without the defence speci- fied in the last section, set forth facts, showing that he has an estate in the property or any part thereof, adverse to the plaintiff, in fee, or for life, or for a term of years not less than ten, in possession, reversion, or remainder, as in a complaint for the same cause of action; or the defendant may set forth facts showing that he has an interest or an easement in, or a lien or incumbrance upon, said property; and thereupon he may demand that the complaint be dis- missed, or any judgment to which he would be entitled in an action brought by him to recover that estate in said property, or to enforce in any manner the in- terest or easement therein, or the lien or incumbrance thereupon which he asserts; or he may combine any two or more of said demands. g 1642. [Am'd, 1891.] Proceedings the same as in ejectment. Where an issue of fact is joined in an action brought as prescribed in this article, unless the defendant merely demands that the complaint be dismissed, if the defendant claims an estate in said property, the subsequent proceedings, including the trial, judgment and execution, are the same as if it was an action 494 TO COMPEL DETERMINATION OF A CLAIM TO REALTY Art. 3. Proceedings after Issue Joined. of ejectment, except as otherwise expressly prescribed in this title; if the de- fendant claims an interest or easement in, or a lien or incumbrance upon, said property, the subsequent proceedings are the same as if it was an action brought by the defendant to establish or enforce the said interest, easement, lien or in- cumbrance, and the court may award any appropriate relief except as otherwise expressly prescribed in this title. § 1643. Proceedings when defendant claims in reversion or remainder. Where the defendant claims the property in question, or any part thereof, by virtue of an estate in remainder or reversion, he need not establish a right to the immediate possession thereof; but where the verdict, report, or decision finds that he has such an estate, it must specify the time when, or the con- tingency upon which, he will be entitled to possession; and final judgment to that effect must be rendered accordingly, without damages. In such a case, an execution for the delivery of the possession of the property may be issued upon the judgment; but only by the special order of the court, made upon an applica- tion by the defendant, or a person claiming under him, and satisfactory proof that the time has arrived when, or the contingency has happened upon which, the applicant is entitled to possession by the terms of the judgment. The same defences may be set up to defeat the right of plaintiff to relief as in other actions. Hammond v. Tillotson, 18 Barb. 332; Ford V. Belmont, 35 Supr. Ct. 135; S. C. 69 N. Y. 567; Peck V. Broivn, 26 How. 350. In an action to determine a claim to real property, if the plain- tiff fails to prove possession, the defendant may have the com- plaint dismissed, but in order that he may have the judgment in his own favor he must prove his own title. Want of title in the plaintiff is not sufficient. Benson v. Toivnsend, 7 N. Y. Supp. 162; S. C. 26 St. Rep. 644. In an action to compel the determination of claims to real prop- erty, of which plaintiff is in possession, claiming to own the fee, an injunction will be ^X2^\\.&di pendente lite against defendants who have brought ejectment suits against plaintiff's land, restraining all proceedings in any of the suits until the final determination of the action to determine the claim. Cuthbert v. Chaiivet, 37 St. Rep. 564, affirmed, 37 St. Rep. 941. Different claimants of separate parcels all denying plaintiff's rights on the same ground, and claiming title from the same source, may be united as defendants. Fisher v. Hepburn, 48 N. Y. 41. When plaintiffs proved a deed of the premises to their ancestor, his decease intestate, and that they were his heirs at law, but that the premises were vacant, it was held not to estab- lish or give ground to presume an actual occupation. Churchill I TO COMPEL DETERMINATION OF A CLAIM TO REALTY. 495 Art. 4. Judgment and its Effect. V. Onderdonk, 59 N. Y. 134. Where plaintiff only shows posses- sion under an unfounded claim, evidence of actual possession and occupation by defendant, prior to the entry of defendant, is a sufficient defence. Ford v. Belmont^ 69 N. Y. 567. The same right to amendment of pleadings exists as in other actions. Broivn v. Leigh, 49 N. Y. 78. The court also has power to open a judgment entered on failure to answer. Mann v. Provost, 3 Abb. 446; Roscvelt v. Giles, 7 Hill, 166; Williams v. Cox, 6 Wend. 519. In such an action proof that the premises were assessed to the plaintiff as owner is admissible as tending to show a claim thereto on his part, and the jury may determine whether defendant has title to the whole or part of the premises. Hager V. Hager, 38 Barb. 92. If defendant has a title he is bound to produce and prove it. Plaintiff is not required to show anything beyond possession as required by the statute, if it be put in issue by the answer; as to title, defendant is the actor and is bound to prove it. Bar- nard V. Sims, 42 Barb. 304. Where both a lessor and a lessee of the corporation were made defendants as having a claim, and both appeared and neither dis- claimed by their pleadings or in any manner on the trial, and no motion was made to dismiss the complaint, defendant cannot urge there was nothing to show that the lessee company made a claim against plaintiff, and that, therefore, as to it the complaint should have been dismissed. Philips v. R. W. & O. R. R. Co. 30 St. Rep. 41, 9 Supp. 799. Where defendant by an answer simply denies plaintiff's posses- sion and not his title, and does not allege title or possession in himself, he is not entitled to a judgment for afifirmative relief. Kingv. Townsend, 78 Hun, 380, 29 Supp. 181. ARTICLE IV. Judgment and its Effect. §§ 1644, 1645, 1646. § 1644. Judgment awarding defendant possession, etc. Where a final judgment, in favor of the defendant, determines that he is entitled to the immediate possession of the property, it must award him posses- sion accordingly. The final judgment must also award to him his damages for the withholding of his property, as in an action of ejectment. 496 TO COMPEL DETERMINATION OF A CLAIM TO REALITY. Art. 4. Judgment and its Effect. § 1645. [Am'd, 1891.] Judgment for plaintiff. Final judgment for the plaintiff must be to the effect that the defendant, and every person claiming under him, by title accruing after the filing of the judg- ment-roll, or of the notice of the pendency of the action, as prescribed in article ninth of this title, be forever barred from all claim to any estate of inheritance, or for life, or for a term of years not less than ten, in the property; or such judgment must be that the defendant and every person claiming under him, as above stated, be forever barred from all claim to any interest or easement in, or lien or incumbrance upon, the said property, of any kind or nature whatsoever, or of any particular interest, easement, lien or incumbrance specified in said judgment ; and the court may direct any instrument purporting to create any such interest, easement, lien or incumbrance to be delivered up or to be canceled of record; or two or more of said forms of judgment may be awarded in the same action. If such a judgment is taken upon the defendant's default in appearing or pleading, it shall not award costs to either party, unless it be taken upon a default in answering, after the decision of a demurrer to the complaint. § 1646. [Am'd, 1891.] Effect of judgment. A final judgment in favor of either party, in an action brought as prescribed in this article, is conclusive against the other party, as to the title established in the action; and also against every person claiming from, through, or under that party, by title accruing after the filing of the judgment-roll, or of the notice of the pendency of the action, as prescribed in article ninth of this title. A new trial of said action after judgment shall not be granted as a matter of right, but the court may, in its discretion, in the interest, of justice, grant a new trial upon an application made by any party within one year after said judgment. But where a defendant is an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a criminal charge or in execution upon conviction of a criminal offence for a term less than life, the said defendant shall have the right, within one year after his disability is terminated, to apply for and obtain a new trial of said action, and the representatives of such a defendant shall have the same right within one year after the death of said defendant, if such death occurs while the disability continues. Upon any new trial of an action, brought as prescribed in this article, the record of the evidence given upon the previous trial may be again offered to the court by either party, and may be received in evidence, in case the same evidence cannot be again procured. The courts may make such rules and orders as to preserving the record of the evidence given in such actions and perpetuating the proofs produced therein, either with or with- out the awarding of any other relief to the party whose proofs are so perpetu- ated, as shall be necessary or proper, and may embrace such directions in the judgment. Section 1645 modifies the rule laid down in Davis v. Read, 65 N. Y. 566. A judgment after trial is conclusive, and the parties are limited to the ordinary practice of the court as to new trials. Malin v. Rose, 12 Wend. 258. It was also conclusive against de- fendant, and all claiming under him, by title accruing subsequent TO COMPEL DETERMINATION OF A CLAIM TO REALTY. 497 Art. 5. Proceedings when Against Woman Claiming Dower. to filing of the notice (see language of present section). Malto7i- ncr V. Diinmick^ 4 Barb. 366. A defendant who claims no interest, in order to avoid liability for costs, should appear and disclaim ; by so doing, the burden is thereupon thrown on plaintiff of establishing the fact that defend- ant has claimed, and upon his failure to do so the complaint should be dismissed as to such defendant, with costs. Davis v. Read, 65 N. Y. 566. If the complaint is dismissed, the defend- ant is entitled to costs as matter of right. Tanner v. Tibbits, 19 Wend. 133; Rugen v. Collins, 8 Hun, 384. The court has juris- dicton of the question of extra allowance. Fisher v. Hepburn, 48 N. Y. 41. Where the referee failed to find the value of the prop- erty, the clerk has no power to receive evidence to determine such value as a basis for an extra allowance. Newton v. Reid^ 24 Week. Dig. 472. The provisions of § 3252, relating to extra allowance, relate solely to an action under these sections, when it provides for an allowance in an action to compel the determination of a claim to real property. 8 Civ. Pro. R. 214, etc., note. ARTICLE V. Proceedings when Against Woman Claiming Dower. §§ 1647, 1648, 1649. § 1647. [Am'd, 1891.] Action to determine •widow's dower. A person claiming, as owner, an estate in fee, for life, or for years, in real property, may maintain an action against a woman, who claims to have a right of dower in the whole or a part of the property, to compel the determination of her claim. But such an action cannot be commenced until after the expiration of four months after the death of defendant's husband. If the defendant is under any of the disabilities specified in the last section, the provisions of that section relating to new trials and to perpetuating proofs, shall apply to her case. § 1648. Proceedings, if plaintiff admits defendant's claim. In an action brought as specified in the last section, if the complaint admits the defendant's right of dower in the property described therein, or any part thereof, it must demand judgment that her dower be admeasured. In that case, if the defendant does not, by her answer, set forth facts showing that she is en- titled to a greater right of dower or another estate or interest in the property, than is so admitted, and demand judgment therefor, as if she was the plaintiff in an action for dower, the court must render an interlocutory judgment, di- recting her dower to be admeasured, with or without damages for its detention, as in an action for dower. The subsequent proceedings are the same, as if the defendant had, as plaintiff, recovered an interlocutory judgment in an action for dower. [Special Actions — 32.] 498 TO COMPEL DETERMINATION OF A CLAIM TO REALTY. Art. 5. Proceedings when Against Woman Claiming Dower. § 1649. Id. ; when defendant's claim is denied. Where the plaintiff insists, in his complaint, that the defendant has not a right of dower in the property, he must demand judgment that she be forever barred from such a claim. In that case, or where the plaintiff admits a right of dower in the defendant, and the defendant in her answer demands judgment for a greater right of dower, or another estate or interest in the property, than is so admitted, the provisions of this article, relating to an action to compel the determination of an adverse claim in fee, or for life, or for a term of years not less than ten, apply to all proceedings subsequent to the answer. Where a complaint set forth that defendant was the wife of a person who died seized of the lands of which plaintiff is seized in fee, subject to defendant's dower, while not setting forth facts sufficient to maintain ejectment, is sufficient for the purpose of the relief asked for, that defendant's dower be admeasured and set off to her. Lindon v. Doctsch^ 40 Hun, 239, 24 Week. Dig. 167. In an action to partition the real property, the wife of a tenant in common was made a party defendant and his share alleged in the complaint to be subject to her inchoate right of dower; the action was held not to be such as is contemplated by section 1647 which is not applicable to such case. DicJil v. Lambert^ 9 Civ. Pro. R. 267. CHAPTER VI. WASTE. * PAGE. Article i. What constitutes waste 499 2. By whom action maintained. Sees. 1652, 1653, 1654, 1656 503 3. Against whom action lies and defences. Sec. 1651. 507 4. Injunction to restrain waste. Sec. 1681 508 5. Judgment. Sec. 1655 511 6. Miscellaneous provisions as to waste. Sees. 1657, 1658, 1659 511 Sections of the Code of Procedure and Where Found in this Chapter. SEC. ART. PAGE. 165 1. Who liable to action for waste 3 507 1652. Action by heir, devisee, or grantor of reversion 2 503 1653. Id.; by ward against guardian 2 503 1654. Id. ; by grantee of real property, sold under execution 2 503 1655. Judgment in action against tenant of particular estate 5 511 1656. Action against joint tenant or tenant in common 2 503 1657. Id.; interlocutory judgment for partition 6 511 1658. Id.; damages to be deducted from defendant's share 6 512 1659. View; when not necessary; when and how made 6 512 1681. Defendant, how prevented from committing waste 4 508 ARTICLE I. What Constitutes Waste. Waste is any permanent or lasting injury done or permitted to be done by the holder of the particular estate to the inheritance or to the prejudice of any one who has an interest in the inherit- ance. Cooley on Torts, 392. Tenants for life are bound not to commit waste or destruction of an estate, voluntary or permissive, and are bound to take proper care so as to prevent deterioration from neglect or decay; other\vise they may have to respond in damages even for waste *Yoors Essay on Waste, London, 1863, seems to be the only text-book ex- clusively devoted to the subject. See, however, American and English En- cyclopedia of Law, title "Waste." [499] 500 WASTE. Art. I. What Constitutes Waste. committed by a stranger and may be stopped by injunction. Gerard's Titles to Real Estate, page 137. Although, under the Code, the former technical action of waste is abolished, the general provisions of the Revised Statutes regard- ing such former suits remain in force and apply to an action in the nature of waste brought under the Code. There are two kinds of actionable waste, either "negligent waste" or "wanton or malicious waste. " The action for either kind is maintainable at once after its commission, and the theory of the action is to compel the wrong-doer to make satisfaction equivalent to a restora- tion of the premises to their previous condition. The inquiry is as to the injury to the reversion, and good faith on the tenant^ part is no defence where the act amounts to waste. Pjirton v. Watson, 19 St. Rep. 6, 2 N. Y. Supp. 661. The article relating to waste is a revision of the statute on that subject, omitting that portion relating only to certain matters of practice ; the balance has been consolidated and rearranged. Under the statute, the action being penal in its character, the plaintiff was held to strict proof. Carrier v. Ingalls, 12 Wend. 70. Waste is whatever does a lasting damage to the freehold or inheritance. AlcCaj v. Wait, 51 Barb. 225; Jacks v. Brownson, 7 Johns. 227; McGregor v. Brozun, 10 N. Y. 114; Purton v. Wat- son, 19 St. Rep. 6. Certain acts are injurious/rr j^r to the inherit- ance, as, for instance, the cutting of timber. AIcGregor v. Brown, 10 N. Y. 114. It is said in Sarlcs v. Sarles, 3 Sandf. Ch. 601, that cutting any timber trees is waste. The rule laid down in Robinson v. Kiuic, 70 N. Y. 147, is that felling of trees for sale by a tenant for life, to the injury of a reversion, is waste. A ten- ant cannot cut timber for selling or just before the expiration of his lease. Kidd v. Dennison, 6 Barb. 9. It is waste for a tenant to cut wood to burn brick for sale, where he has covenanted not to commit waste of wood or timber, or not to cut down or carry away more than is actually used on the farm. A tenant may cut down so much timber as may be necessary for fuel, but not to carry off for sale or use elsewhere. Rutherford w. Aiken, 2 T. & C. 281 ; Van Deusen v. Young, 29 N. Y. 9. In parts which are new and covered with forest the tenant has been allowed to cut and sell timber for the purpose of fitting the land for cultivation. Jackson w. Broivnson,"] Johns. 227; Harder V. Harder, 26 Barb. 409; Kidd v. Deniiison, 6 Barb. 9. Where WASTE. 501 Art. I. What Constitutes Waste. the tenant has the right to cut in the exercise of good husbandry, any encroachment on what should be left as a provision for fire- wood and refuse is waste. People v. Davison, 4 Barb. 109. Cut- ting and carrying away timber from his ward's land by a guardian is waste unless it is required for the repair of fences or buildings, or unless good husbandry requires its removal. Terry v. Black, I T. & C. 42; S. C. 58 N. Y. 185. In considering whether trees are ornamental on the question of waste it is important to con- sider whether they have been treated as such by the owner of the premises. Hazvley v. Woolverton, 5 Paige, 522. The English doctrine with regard to waste is said to be now modified, and the question is, was it good husbandry and justified by the usage of the place. Kidel v. Dennison, 6 Barb. 9; Sarles v. Sarles, 3 Sandf. Ch. 601 ; McGregor v. Brozvn, 10 N.Y. 1 14. Waste is an improper destruction, or material alteration, or devastation of the freehold, or of other things forming an essential part of it, done or suffered by a person rightfully in possession as tenant, or hav- ing but a partial estate, like a mortgagor. It is not waste for a tenant of nursery grounds, entering subsequent to a mortgage, to remove and sell in good faith and in the usual course of business growing nursery stock, if done before foreclosure is begun, and not in apprehension of foreclosure, or for the purpose of injury to the freehold or the security, nor to continue to do so after fore- closure begun if a plaintiff does not obtain the appointment of a receiver. Hamilton v. Austin, 36 Hun, 138. Cutting firewood for men working on farm is said in 3 Sandf. Ch. 601, siipra, to be waste. No title to timber can be acquired as against a mortgagee by- wrongful and fraudulent acts of waste. Harrington v. Birdsell, 5 Week. Dig. 421. A lessee, in the absence of express permission from his lessor, is not justified in making alterations. Douglas v. Wiggins, I Johns. Ch. 435. The taking down partitions is apparently an act of waste. Agate v. Lozucnbcin, 57 N. Y. 605 ; Woiten v. Wise, 47 Supr. Ct. 515. Pulling down valuable build- ings is waste, but the erection of a new building is not. Winship v. Pitts, 3 Paige, 259. Where real estate was devised to tru.stees absolutely and in fee, with full power to lease for the most money that could be obtained, and for any term they might think proper, held, that they were not guilty of waste in allowing a ten- ant to pull down an old building and build a new one, it appear- 502 WASTE. Art. I. What Constitutes Waste. ing that the resulting improvement greatly benefited the prop- erty. N. Y. Dyeing and Printing Establishment V. De Westenberg, Abb. Ann. Dig. 1886, p. 375. It is waste to open new mines to dig and carry away the soil, Coates v. Cheever, i Cow. 460 ; Livingston v. Reynolds, 2 Hill, 157. And where lands are demised for agricultural purposes only, it is waste for a tenant to work an open quarry. Freer v. Stotenbnr, 2 Keyes, 467. Where a tenant for life willfully neglects to pay interest so that a mortgage may be foreclosed, it is waste. Wade v. Malloy, 16 Hun, 226. The usual remedy for a mortgagor against waste is by injunction. Brady v. Waldron, 2 Johns. Ch. 148. And when a judgment is a lien upon a single piece of land and the judgment debtor is in possession, an injunction is the proper remedy, at suit of the judgment creditor, to restrain waste thereon. Vanderinarkw. Sehooninaker, g Hun, 16. See provisions of Code of Civil Procedure, § 1442, etc. An action will lie against the holder of the equity for acts committed with knowledge that they would endanger the security of the mort- gagee, as cutting valuable timber or removing fences. Van Pelt V. MeGraiv, 4'N. Y. no. See Soiithworthv. Van Pelt, 3 Barb. 347. Where an act was proper in itself, such as turning a water- course for the purpose of good husbandry, and the landlord lies by for many years till its ultimate results have proved beneficial to the inheritance, he is not entitled to an action. Jacksoti v. Andrezvs, 18 Johns. 431. Plaintiff may recover for negligent waste, as in suffering building to be burned, though the complaint charge defendant with setting it on fire. Robinson v. Wheeler, 25 N. Y. 252, The courts of this State have no jurisdiction of an action for waste committed out of the State. Cragin v. Lovell, 88 N. Y. 258. See Sentenis v. Ladew, 140 N. Y. 463. The right to maintain an action of waste for trespasses given to a person seized of an estate in remainder or reversion by the Revised Statutes, is continued by the present Code, and in an action for waste committed by a life tenant brought by heirs at law, and persons entitled under the will of the testator, it was held that the action was not defeated by the claim, that there had been an equitable conversion of the property, conferring the right of action on the executors. Boiiton v. Thomas, 46 Hun, 6. WASTE. 503 Art. 2. By Whom Action Maintained. ARTICLE 11. By Whom Action Maintained. §§ 1652-1654, 1656. § 1652. Action by heir, devisee, or grantor of reversion. An heir or devisee may maintain an action for waste, committed in the time of his ancestor or testator, as well as in his own time. The grantor of a rever- sion may maintain an action for waste, committed before he aliened the same. § 1653. Id. ; by ward against gueurdian. Such an action may also be maintained against a guardian by his ward, either before or after the termination of the guardianship, for waste, committed upon the real property of the ward, during the guardianship. § 1654. Id. ; by grantee of real property sold under execution. Where real property is sold by virtue of an execution, the person, to whom a conveyance is executed pursuant to the sale, may maintain an action for waste, committed thereon after the sale, against the person, who was then in possession of the property. ^ 1656. Action against joint tenant or tenant in common. An action for waste may also be maintained, by a joint tenant or tenant in common, against his co-tenant, who commits waste upon the real property held in joint tenancy or in common. If the plaintiff recovers therein, he is entitled, at his election, either to a final judgment for treble damages, as specified in the !ast section, or to have partition of the property, as prescribed in the next two sections. People may_ bring action to restrain waste on lands in forest preserve. § 280, chap. 31, General Laws. Loan commissioners may bring action to restrain waste on mortgaged premises. § 33, chap. 150, Laws 1837. Land sold for taxes shall not be despoiled and occupant or other person may be restrained. Tax Law, 1896; chap. 908, § 129, General Laws. A person having a vested remainder in land may maintain an action for waste against one holding the life estate. Williams v. Pcabody, 8 Hun, 271. As the reversioner cannot bring trespass or ejectment against a tenant so long as the tenancy continues, he is not debarred from his remedy at law or in equity for waste because the proceeding may involve the determination of a dis- puted title. Robinson v. Kimc, 70 N. Y. 147. He need not wait till the expiration of the tenancy to bring his action. Agate v. Lozvenbein, 57 N. Y. 605 ; Robinson v. Whcclcr, 25 N. Y. 252. An action for waste can be maintained by the grantee of the rever- sioner against the assignee or sub-tenant of the tenant for life. Rutherford v. Aiken, 2 T. & C. 281. Owner of an intervening 504 WASTE. Art. 2. By Whom Action Maintained. estate for life or for years is not a necessary plaintiff in an action for waste for injury to inheritance by cutting timber, but no dam- ages can be recovered in such action for injury to life tenant; he may bring a separate action. Van Dcusen v. Young, 29 N. Y. 9. It was said in Peterson v. Clark, 15 Johns. 205, that only the per- son having the next immediate estate of inheritance in reversion or remainder can maintain an action for waste, and a person hav- ing an expectant interest in land less than an inheritance cannot maintain it. An action by a landlord against a tenant to recover damages for the removal of partitions is analogous to the former action for waste, and plaintiff must show an injury to freehold and reversion; that is, to his own estate. Aberle ^. Fagan, 42 Supr. Ct. 217. An action lies by the mortgagee for waste against the mortgagor or his grantee. Ensign v. Colbnrn, 1 1 Paige, 503 ; Van Pelt v. McGrazu, 4 N. Y. no. Under the Revised Statutes a person seized in remainder or re- version had the right to maintain an action of waste for any in- jury done to the inheritance, notwithstanding any intervening estate for life or for years, and this right is continued by the Code. Bonton v. Thomas, 10 St. Rep. 827. A person must be seized of an estate in remainder or reversion in order to maintain an action for waste for injury to the inheritance, where there is an intervening estate for life. Woodruff' v. Cook, 47 Barb. 304. A reversioner may recover for waste by a tenant although after its commission he alienate the estate and have no interest therein at the time of suit brought. Robinson v. Wheeler, 25 N. Y. 252. A judgment creditor having no specific lien cannot maintain an action for waste. Lanning v. Carpenter, 48 N. Y. 408. As to right to an injunction after sale, see Vandermark v. Schoonmaker, 9 Hun, 216. It seems that a person having interest in the premises may maintain the action. Lee v. Whallon, 20 Week. Dig. 366. The owner and one who has contracted to purchase are necessary par- ties to an action for waste against the lessee. Kidd v. Dennison, 6 Barb. 9. A contract to purchase upon the performance of acts to be done by the purchaser gives no right to enter and commit waste. Cooper v. Stover, 9 Johns. 331. It is not necessary to show the defendant's primary motive in committing waste was to injure plaintiff's security. It is enough that defendant acted with a full knowledge of the circumstances, though primarily with a view to his own emolument. Van Pelt v. McGrazu, 4 N. Y. 1 10. WASTE. 505' Art. 2. By Whom Action Maintained. Section 1925, etc., gives an action to prevent waste of public lands. A purchaser on execution is entitled to the proceeds of waste after sale and before time to redeem if there is no redemption. Boydv. Hoyt, 5 Paige, 65. A party who redeems land sold on execution, after receiving the sheriff's deed, can maintain waste against any person who, intermediate the sale and sheriff's deed, cuts and takes timber from the premises. So held where the party who bid off the premises at the sheriff's sale cut and carried away the timber with the consent of the judgment debtor, who was in possession. Thomas v. Crofut, 14 N. Y. 474. It is held in Potter v. Cromzucll, 40 N. Y. 287, that where the purchaser of real estate upon sale under execution, intermediate the sale and the sheriff's deed, severs anything from the realty, he is liable for its value only to the person who eventually receives the sheriff's deed. A statutory guardian has no right to commit or permit waste. Torry v. Black, i T. & C. 42, affirmed, 58 N. Y. 185. But the fact that the avails of the timber cut were applied to the support of the ward may be pleaded as a partial defence. Holbrook v. Wells, 8 Week. Dig. 391, An action for waste will lie by one co- tenant in common against his co-tenant who cuts and removes timber, which is the chief value of the land, and converts it to his own use. Elwcllv. Burnsidc, 44 Barb. 447. For the rule and authorities as to allowance of treble damages, see § 1668. An action upon a covenant against waste may be maintained for waste committed by the assignee of the tenant, but not by a landlord against his tenant for waste committed by an assignee of the tenant who was in exclusive possession of the premises. Donald v. Elliott, 11 Misc. 120, 32 Supp. 821, 66 St. Rep. 218, 24 Civ. Pro. R. 190. Where an instrument, termed a lease, gave to the lessee " the sole and exclusive right of entering in and upon the lands * * -^^ for the purpose of quarrying, cutting, crushing and removing stone, for the term of ten years * * * but not to hold pos- session of any part of said lands for any other purpose," held, that it gave to the lessees no title to the stone, save to so much thereof as they should quarry and remove within the term speci- fied ; that what they did not quarry and sever from the land, re- 5o6 WASTE. Art. 3. By Whom Action Maintained. mained the property of the owner of the fee ; and that, therefore, the lessee could not maintain an action to recover the value of stone unlawfully quarried and taken from the land by a third per- 'W son. It seems, that in such case the trespass would be an infringe- ment upon the rights of the lessees for which they could recover such damages as they could show they had, in fact, sustained. The doctrine that a tenant for life or years is bound to answer to the owner for any waste, even though it be the act of a stranger, applies only where an actual tenancy exists, giving the lessee the right of possession, not where a mere incorporeal hereditament is transferred. Where, as in this case, the lessor retains the right to and remains in possession, the lessee incurs no implied obliga- tion to protect the premises from trespassers, and is liable only for his own acts. Baker v. Hart, 123 N. Y. 470, 26 Abb. N. C. 194, 34 St. Rep. 102, reversing 52 Hun, 363, 24 St. Rep. 362. A complaint was dismissed in an action for permissive waste on examination of the evidence. Eysavian v. Small, 1 5 Supp. 288. An action may be maintained by a mortgagee to restrain the removal of hand-painted canvasses which are firmly cemented to the ceiling of the mortgaged premises where the property is heavily mortgaged and their removal would render the security inadequate. Calm v. Hewsey, 8 Misc. 384, 59 St. Rep. 868, 29 Supp. 1 107, 31 Abb. N. C. 387. Where in an action against a lessee for waste, the complaint did not demand treble damages, and plaintiff did not ask for them before the taxing officer or on a motion to vacate the judgment, he cannot raise the question before the General Term. Cleveland v. Wilder, 78 Hun, 591, 60 St. Rep. 764, 29 Supp. 209. Persons to whom lands have been devised in trust may main- tain an action for trespass causing injury to the inheritance not- withstanding the premises are in the possession of a tenant under a lease. The erection and maintenance of an elevated railway is such a trespass. Mortimer v. Manhattan Elevated R. R. Co. 29 St. Rep. 262 ; Doyle v. Majihattaji Elevated R. R. '^S St. Rep. 373 ; Macy V. Metropolitan Elevated R. R. Co. 36 St. Rep. 245. One who has an equitable contingent interest in lands may maintain an action to restrain waste. One seized of an estate in remainder or reversion can maintain an action for waste, notwith- standing any intervening estate for life or years. Piirton v. WaU son, 19 St. Rep. 6. WASTE. 507 Art. 3. Against Whom Action Lies and Defences. Remaindermen have an existing property right in a claim for damages to their portion of the fee, and the privilege of enforcing it is not suspended during the prior estate. Such damages may be apportioned by taking what would be the damage to the whole fee and apportioning such amount between the life-tenant and the remaindermen according to annuity tables. Thompson V. Manhattan R. R. Co. 24 St. Rep. 498. An action for waste cannot be maintained upon the bond of a deceased general guardian charged with having in his lifetime wasted his ward's estate, until a decree has been made by the sur- rogate, upon an accounting of the deceased guardian's administra- tor, determining the amount of the devastavit. Whether such an action can in any event be maintained by the deceased guardian's successor or must be brought in the name of the infant by a guardian ad litem. Query. Perkins v. Stimmel,2T) St. Ke^. 6^)"/. Where an executrix was authorized to sell the real estate of the testator and was given the possession of the realty until it is sold, with the rents and profits thereof, in an action brought by the legatees against the executrix in her individual capacity to restrain the cutting down and selling of timber from the real estate, in which it was not shown that the value of the estate was impaired, or the defendant insolvent, or that she was unable to respond in damages when called upon by those interested in the estate, it was held that no cause appeared for equitable interference. This seems to have been the second appeal, the first appeal having been reported 115 N. Y. 290, Ogsbiiry v. Ogsbury\ Keller v. Ogs- biiry, 121 N. Y. 362. ARTICLE III. Against Whom Action Lies and Defences. § 165 1. § 165 1. Who liable to action for waste. An action for waste lies against a tenant by the curtesy, in dower, for life, or for years, or the assignee of such a tenant, who, during his estate or term, com- mits waste upon the real property held by him, without a special and lawful written license so to do; or against such a tenant, who lets or grants his estate, and still retaining possession thereof, commits waste without a like license. An action of wa.ste will not lie against a testamentary trustee who enters on the land devised and commits waste thereon. Kincaid w Scott. 12 Johns. 368. A mortgagee cannot, it is said, maintain an action of waste against a mortgagor before forfeiture. 5o8 WASTE. Art. 4. Injunction to Restrain Waste. Peterson v. Clark, 15 Johns, 205. See Thomas on Mortgages, 55, n. 2. The action lies against the assignee of a lease. Short v. Wilson, 13 Johns. 33. If a lessee commits waste, an immediate action lies against him. Agate v. Lozvcnbein, 57 N. Y. 605. The action is said not to lie against a stranger. Livingston v. Hey- wood, II Johns. 429; Bates v. Shraeder, 13 Johns. 260. A parol license cannot justify waste in a tenant for life or for years. The fact that such license was on condition he should clear and seed the land on which he cut timber does not avail. McGregor v. Brozvn, 10 N. Y. 1 14. It is no defence to an action for waste against a tenant for life that he acted in good faith, or under a claim of right, or that he was in possession claiming a fee. Robin- son v. Kime, 70 N. Y. 147. A contract of purchase upon the performance of certain acts to be done by the purchaser gives no right to enter and commit waste. Cooper V. Stover, 9 Johns. 331. In an action for waste, or in the nature of waste, for making unauthorized alterations upon leased lands the lessees cannot offset any benefit to the prop- erty from such alterations. Wolton v. Wise, ^y Super. Ct. 515. If a tenant repairs what would be held to be waste before action brought, it is a defence. Jackson v. Andrew, 18 Johns. 431. A purchaser rightfully in possession under an executory contract, by which time is given for the payment of the purchase money, will not be restrained from cutting timber unless he do so to such an extent as to render the land an inadequate remedy for the pur- chase money. Van Wyck v. Alligcr, 6 Barb. 507. Where a lease contains a covenant against waste by the tenant, but no provision against subletting or assigning, and the tenant assigns his term, and waste is committed by the sub-lessee, the lessor cannot maintain an action against the tenant under §§ 165 1, etc., of the Code of Civil Procedure and recover treble damages, but is put to an action against the assignee for waste, or against the tenant for the breach of the covenants of the lease. Donald v. Elliott, 24 Civ. Pro. R. 190. ARTICLE IV. Injunction to Restrain Waste. § 1681. § 1681. Defendant, how prevented from committing wraste, etc. If, during the pendency of an action specified in tliis title, the defendant commits waste upon, or does any other damage to, the property in controversy, WASTE. 509 Art. 4. Injunction to Restrain Waste. the court, or a judge thereof, may, upon the application of the plaintiff, and due proof of the facts by affidavit, grant, without notice or security, an order, restrain- ing him from the commission of any further waste upon or damage to the property. Disobedience to such an order may be punished as a contempt of court. This section does not affect the plaintiff's right to a permanent or a temporary injunction in such an action. § 1442. Order to prevent waste; when and how applied for. If, at any time during the period allowed for redemption, the judgment debtor, or any other person in possession of the property sold, commits or threatens to commit, or make preparation for committing waste thereupon, the supreme court, or any justice thereof, within the judicial district, or any county judge of the county, in which the property, or any part thereof, is situated, may, upon the application of the purchaser, or his assignee, or the agent or attorney of either, and proof, by affidavit, of the facts, grant, without notice, an order, restraining the wrong-doer from committing waste upon the property. These sections are given out of their order, since they apply only to an injunction to restrain waste, although it may be granted in other real estate actions under § 168 1. See also §§ 1443, 1444 as to how violation of such order is punished. In ejectment, where the title is clear, and there is danger that rents and profits may be removed out of the jurisdiction, an injunction will issue to restrain the payment of rents and profits to defendant. Rcnncr v. Mullcr, 44 Super. Ct. 535. See contra. Storm V. Mann, 4 Johns. Ch. 21 ; People v. Davison, 4 Barb. 109. After judgment and sale in foreclosure, and while awaiting con- firmation, the court has authority, on petition of the purchaser, to restrain the mortgagor from committing waste. Mutual Life Ins. Co. V. Bigler, 79 N. Y. 568. After a foreclosure sale, but before its confirmation, a mortgagor who remains in possession will be enjoined from removing machinery, which is claimed by the purchaser to be part of the realty. Mutual Life Ins. Co. v. Bank of Neivburg, 18 Hun, 371 ; s. C. 79 N. Y. 568; Robinson v. Preszvick, 3 Edw. Ch. 246. Injunction lies against mortgagor in possession to stay waste to the injury of the security. Brady v. Waldron, 2 Johns. Ch. 148. See /o/inson v. White, 11 Barb. 184. An injunction lies to stay waste by changing a dwelling-house into a store; Douglas v. Wiggins, i Johns. Ch. 435; to prevent one in possession from cutting timber, and to prevent the removal of timber cut. Weatherby v. Wood, 29 How. 404 ; Spear v. Cutter, 2 C. R. 100. Injunction refused where cutting was threatened in Griffin v, Winne, 10 Hun, 571, afifirmed, 79 N. Y. 657. Waste in mines and quarries will be restrained. West Point Iron Co. v. 5IO WASTE. Art. 4. Injunction to Restrain Waste. Reyniert, 45 N. Y. 703. Where an intention to commit waste is shown, an injunction will issue. Livingston v. Reynolds, 26 Wend. 115- To obtain an order against waste under § 168 1 it is not neces- sary to show the insolvency of the party sought to be restrained. The provision -of that section, however, does not include the removal of wood or timber already cut. Trustees, etc. v. Matte- son, 12 St. Rep. 370, citing People v. Alberty, 11 Wend. 161 ; Johnson v. White, 1 1 Barb. 194, stating that a different rule is held in an action brought to restrain waste not only will future waste be restrained, but the removal of timber already cut. Kidd V. Dennison, 6 Barb. 18; Watson v. Hunter, 5 Johns. Ch. 169; Weather by v. Wood, 29 How. 404; Farrington v. Birdsall, 5 Week. Dig. 421. Equity interferes by injunction to restrain waste and prevent injury if the waste or trespass is shown to be an irreparable mis- chief, or where defendant is irresponsible. Spear v. Cutter, 5 Barb. 486. But not where defendant is in possession claiming ad- versely and plaintiff has brought ejectment. Storm v. Mann, 4 Johns. Ch. 21. An injunction will be granted at a suit of the mortgagee to pre- vent cutting timber and the removal of that already cut. Herman v. Stewart, 5 Week. Dig. 408 ; Farmington v. Birdsall, 5 Week. Dig. 421; Bradley V. Waldron, 2 Johns. Ch. 148; but see Watson V. Hunter, 5 Johns. Ch. 169. It will be granted generally to pre- vent waste or injury to land. Relyea v. Weaver, 34 Barb. 548, affirmed, DuBoisv. Weaver, 25 N. Y. 123; Johnson v. White, ii Barb. 194; Rodgers v. Rodgers, ii Barb. 595. An injunction will be granted against a mortgagor to restrain a waste of fixtures im- pairing a mortgage security. Robinson v. Preswick, 3 Edw. 246. But a mortgagor who has sold his equity of redemption, taking no indemnity against his bond, since he has no remaining interest in the land, cannot have an injunction to stay waste against his vendee. Brumley v. Fanning i Johns. Ch. 501. See, however, Johnson V. White, ii Bar. 194. An injunction may be granted to prevent the removal of timber already cut or the court may require security as a condition of modifying an injunction in that respect. Weatherby v. Wood, 29 How. 404 ; Kidd v. Dennison, 6 Barb. 9. One in possession of land whose interest has been sold under WASTE. 5 I I Art. 5. Judgment. Art. 6. Miscellaneous Provisions as to Waste. execution will be restrained from committing wa.ste during his possession. Talbot v. Chamberlain, 3 Paige Ch. 219. Injunction will be granted against the working of a mine by other than the owner. West Point Iron Co. v. Rcymcrt, 45 N. Y. 703. An injunction may be granted in foreclosure after sale and before its confirmation to restrain a mortgagee from removing ma- chinery from the mortgaged premises. Mutual Life Ins. Co. v. Bigler, 79 N. Y. 568. So in ejectment, where the title of the plaintiff is clear and there is danger that the rents and profits may be removed out of the jurisdiction, an injunction will issue to restrain the payment of rents to the defendant. Renner v. Muller, 44 Supr. , 535. Where a judgment is a lien upon but one piece of real estate, from which alone satisfaction of the judgment .could be obtained, the judgment debtor being dead, and such real estate is inade- quate security for the payment thereof, a court of equity will, upon the application of the judgment creditor, restrain one in possession of such real estate from the commission of waste thereon, by cutting and removing timber or wood therefrom, where such acts diminish the value of the premises, and thereby repair the only security upon which the creditor must rely for payment of his debt. Vandemark v. Schoonniaker, 9 Hun, 16. ARTICLE V. Judgment. § 1655. § 1655. Judgment in action against tenant of particular estate. If the plaintiff recovers in an action for waste, other than an action brought as prescribed in the next section, the final judgment must award to him treble damages. Where the action is brought by the person next entitled to the reversion, and it appears, in like manner, that the injury to the estate in rever- sion is equal to the value of the tenant's estate or unexpired term, or that it was done maliciously, the final judgment must also award to the plaintiff the for- feiture of the defendant's estate, and the possession of the place wasted. The trial must be by jury unless it is waived. Code, § 968. ARTICLE VI. Miscellaneous Provisions as to Waste. §§ 1657, 1658, 1659. § 1657. Id.; interlocutory judgment for partition. Where the plaintiff elects to have partition, as prescribed in the last section, if the pleadings, verdict, report, or decision, do not determine the rights and 512 WASTE. Art. 6. Miscellaneous Provisions as to Waste. interests of the several parties in the property so held in joint tenancy or in common, the court must ascertain them, by a reference or otherwise. If it appears that there are persons, not parties to the action, who must have been made parties to an action for the partition of the property, they must be brought in by supplemental summons, and, if necessary, supplemental pleadings must be made. When the rights and interests of all the parties are ascertained, an interlocutory judgment for the partition or sale of the property must be rendered, and the subsequent proceedings thereon must be the same, as in an action for the partition of the property, except as otherwise prescribed in the next section. § 1658. Id.; damages to be deducted from defendant'^ share. The plaintiff may elect to take final judgment for the single damages awarded to him, or that, in making the partition, or in dividing the proceeds of a sale, so much of the share of the defendant in the real property; or the proceeds thereof, as will be sufficient to compensate the plaintiff for his single damages, and the costs of the action, other than the expenses of making the partition or sale, be laid off or paid, as the case may be, to the plaintiff. The residue of the property or proceeds, not laid off or distributed to the plaintiff or the defendant, must be laid off or paid to the persons entitled thereto, according to their respective rights and interests. § 1659. View; when not necessary; when and how made. In an action for waste, it is not necessary, either upon the execution of a writ of inquiry, or upon the trial of an issue of fact, that the jury, the judge, or the referee, should view the property. Where the trial is by a referee, or by the court without a jury, the referee or the judge may, in his discretion, view the property, and direct the attorneys for the parties to attend accordingly. In any other case, the court may, in its discretion, by order, direct a view by the jury. CHAPTER VII. NUISANCE.* PAGE. Article i. The nature of the statutory action. Sec. 1663 513 2. When the action will lie. Sec. 1600 518 3. Who can maintain the action 530 4. Defendants and defences. Sec. 1661 542 5. Pleadings and practice 548 6. Relief granted and measure of damages. Sec. 1662. 560 7. Injunction in action for nuisance 567 Sections of the Code of Procedure and Where Found in THIS Chapter, SEC. ART. PAGE. 1660. When action may be brought 2 518 1661. Defendants therein 4 542 1662. Final judgment 6 560 1663. Application of this article i 513 ARTICLE I. The Nature of the Statutory Action. § 1663. § 1663. Application of this article. This article does not affect an action, wherein the complaint demands judg- ment for a sum of money only. It is exceedingly difficult to define the distinction between negligence and nuisance, and it is so clearly stated in note 25 Abb. N. C, page 198, that the following quotation is made therefrom: It is not strange that writers on nuisance have declared the ' word to be undefinable, so shadowy is the border-land between ' these several classes of wrongs. But a careful examination of ' the representative cases cited below will justify us in saying that ' the word as now used in the law may be justly defined as a ' continuing use of property or course of conduct, which, even if ' it would be rightful were the act done an i.solated one, is by ' reason of the proximity of others, a violation of the duty of ' good neighborhood no matter whether it be careful, negligent ' or willful. *Wood on Nuisance discusses this subject very fully, and it is considered in works on tort, more particularly Milliard on Remedies for Torts and in the treatises of Addison, Bishop and Cooley. [Special Actions — 33.] [513] SH NUISANCE. Art. I. The Nature of the Statutory Action. It will aid in solving such questions as these to consider what " are essential elements in each cause of action. Actionable " negligence consists in the omission to fulfill a duty of care. " The complaint must allege facts which show that defendant was under a duty to take some degree of care in view of danger to plaintiff's property or person; and that he or his servants failed " to do so to plaintiff's injury. If this be shown, intent is not " material except on the question of damages. The right of re- " covery exists whether the omission was inadvertent or willful or " whether it was inadvertent on the part of the employer and " willful on the part of the servant. It is true that some authori- " ties have held that if willfulness is alleged there can be no " recovery for negligence; but the better opinion is that if facts " showing an omission of due care be alleged and proved, the ad- " dition of an unproved allegation of willfulness does not vitiate. " Nuisance, on the other hand, is a use of property or a course " of conduct which violates a duty of good neighorhood ; and " negligence and willfulness are alike immaterial, unless it maybe " on the question of damages. A bone-boiling establishment in " a remote and isolated place is rightful; but if the town of resi- " dences grows out to it, it may be a duty of good neighborhood " to cease the use of the place for such offensive work; and the " fact that the owner is as careful as possible, and has no intent " to injure others, will not justify the continuance of a process " which proximity has made noxious to the community. " The law of negligence is growing up out of the increasing " duty of care upon all persons in the increasingly crowded com- " munities and increasingly dangerous instrumentalities of modern " times. The law of nuisance is growing up out of the increasing " necessary restrictions on otherwise lawful conduct and uses of " property in such communities. Negligence usually consists in " the manner of doing a thing, whether the thing in itself be law- " ful or unlawful. Nuisance consists in the thing itself considered " in its proximity to other persons whether the manner of it be " careful or careless." The note cited also calls attention to other distinctions between negligence and nuisance, among others the different period of limitation, the fact that notice or demand before suit is required in some cases against some person who merely continues a nui- sance, also that equitable relief may be granted as against nuisance. I t NUISANCE. 515 Art. I. The Nature of the Statutory Action. while the only remedy for negligence is damages recoverable in an action of a legal nature. A number of cases are also cited as indicating the distinction, namely Wasson v. Pettit, 49 Hun, 166. 16 St. Rep. 778; Jennings v. Van Schaick, 20 Abb. N. C. 324; Dickinson v. Mayor, 92 N. Y. 584; Cohen v. Mayor, 113 N. Y. 532, 23 St. Rep. 509; Conhocton Stone Road v. Buffalo^ N. Y. & Erie R. R. Co. 51 N. Y. 573 ; Splittorf v. State, 108 N. Y. 205 ; McCaffrey v. Tzventy-third St. R. R. Co. a,J Hun, 404; Donner V. Ogikne, 49 Hun, 229; Dunsbach v. Hollistcr, 49 Hun, 352. The entire discussion is an exceedingly careful and exhaustive one and indicates the distinction between the actions. It is ap- pended to Fisher v. Rankin, 25 Abb. N. C. 191, holding that a complaint for damages for personal injuries occasioned by the negli- gence and carelessness of defendant in failing to keep a sidewalk in safe and proper condition, will not sustain a recovery on the ground that defendant unlawfully interfered with the previous con- dition of such sidewalk, rendering it unsafe and a public nuisance. It is said to be impracticable to give a precise technical defi- nition of what constitutes a nuisance at common law, and that the only accurate method of ascertaining the meaning of the term is to examine decided cases adjudged to be or not to be nuisances. 4 Wait's Actions and Defenses, 726. It is defined by Blackstone as anything that worketh hurt, inconvenience or damage. A nuisance is any wrongful conduct in the management of property, or any wrongful interference with the property of the public, not necessarily depending for its wrongful character on negligence. Cooley on Torts, 565. What is a nuisance is a question of fact. A nuisance is something noxious or offensive to any of the senses, either to the sense of sight or hearing as well as smelling, and that may be a nuisance which ofTends none of the senses if it be deleterious to the health or safety, or noxious to human enjoy- ment. Pickardv. Collins, 23 Barb. 453. \w Butter field v. Klaber, 52 How. 255, the court held, that in the enjoyment of his own land one must be confined to such reasonable use thereof as will not inflict injury upon his neighbor, or conflict with his neighbor's reasonable enjoyment, and must submit to such annoyances as result from the reasonable use and enjoyment of his neighbor, of land belonging to him. Citing Campbell v. Seaman, 2 T. & C. 235. The real question is, whether the annoyance substantially interferes with the comfort of human existence and the enjoyment 5l6 NUISANCE. Art. I. The Nature of the Statutory Action. of property. Mulligan v.Elias, 12 Abb. (N. S. ) 259. The rule is, that while a man may prosecute such business as he chooses on his own premises, he has no right to maintain or erect an injury to an adjoining proprietor, or to his neighbors, even in pur- suance of a lawful trade. Hecg v. Licht, 80 N. Y. 579. The term nuisance in legal phraseology, is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to a right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt, that the law will presume a consequent dam- age. Amer. Ency. of Law, Article Nuisance, page 924, citing Wood on Nuisances; and the definition of a nuisance maybe said to be anything wrongfully done or permitted to be done which injures or annoys another in the enjoyment of his legal rights, and Taylor's Landlord and Tenant, § 201 : "Any offen- sive erection which, from its nature, may be an annoyance, or from its situation actually becomes so, is a nuisance. In Cogswell V. Nezv York, New Haven and Hartford R. R. Co. 105 N. Y. 319, this action is defined as being a remedy for dam- ages and for the abatement of a private nuisance, a legal action technically known as an assize of nuisance, it was part of the judg- ment that the nuisance be abated, citing 3 Blackstone's Com. 220 ; Waggoner v. Jerinainc, 3 Denio, 306, and the legal remedy by writ of nuisance for the recovery of damages and an abatement of the nuisance was retained by the Revised Statutes, and though the writ of nuisance was abolished, the same relief may now be had in an ordinary civil action under the Code. A nuisance as defined in Heeg v. Licht, 80 N. Y. 579: "Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, to the injury of another." It is said by the codifiers that the remedy afforded by this arti- cle has long been out of favor, both with the courts and the pro- fession, since an action for damages, or in the nature of a suit in equity, appears to afford an ample remedy. It was said in Aikin V. Benedict, 39 Barb. 400, to be the appropriate remedy. At com- mon law the remedy was by action on the case or writ of nuisance ; the latter remedy was abolished by the old Code, § 453. The action in equity remains; Parker v. Laney, i T. & C. 590 ; and NUISANCE. 5^7 Art. I. The Nature of the Statutory Action. the present action seems to be a provision for both the removal of the nuisance and the recovery of the damages occasioned by it. But in equity the continuance of the nuisance can be restrained and damages recovered as an incident. Hudson v. Caryl, 44 N, Y. 553. An action both legal and equitable in its character may be maintained by the people, through the attorney-general, for the removal of a nuisance, for an injunction against its continuance, and for damages. People v. Met. Tel. & Tel. Co. 1 1 Abb. N. C. 304. Johnston v. Manhattan Ry. Co. 41 St. Rep. 682, following 105 N. Y. 321, 7 St. Rep. 203, holds that an action in which the com- plaint prays judgment for damages and the abatement of the nui- sance complained of, and also for an injunction restraining the defendants from continuing the nuisance and permitting its lands to be used for the purpose of carrying on any business thereon which shall injure the plaintiff in the enjoyment of her property, is not an action for nuisance within § 968 of the Code, which pro- vides for a trial by jury in an action for nuisance. Reading that section in connection with § 1660, an equitable action to restrain the continuance of a nuisance is not the statutory action, and the mere allegation in the complaint that the trespass upon real estate is unauthorized and is a nuisance, and asking that the continuance of such trespass be enjoined, would not make the action one for a nuisance in w^hich the plaintiff is entitled as matter of right to a trial by jury. Cogszvell V. New York, Neiv Haven & Hartford R. R. Co. 105 N. Y. 319, followed above, holds that where a party elects to bring an action for both legal and equitable relief in respect to the same cause of action, the case is not one of right triable by a jury, and by such election he submits to have the issues tried by the court alone or with the aid of the jury, as the court in its dis- cretion may determine, according to the practice in equity cases, and that an equitable action to restrain the continuance of a nui- sance, or an action for a nuisance in which equitable relief is also demanded, is not an action for a nuisance within the meaning of the provisions of the Code giving jury trial. Where the com- plaint asked judgment for damages and for an abatement of an alleged nuisance, and also for an injunction restraining a continu- ance of the nuisance, a jury trial is not a matter of right. To same effect is Dean v. Benn, 69 Hun, 519, 52 St. Rep. 844, 23 Supp. 708. See, however, Hudson v. Caryl, 44 N. Y. 556. 5i8 NUISANCE. Art. 2. When the Action Will Lie. In Robinson \. Smithy 25 St. Rep. 647, it is said, citing //?^/r/^z';/j- V. Sjnith, 63 Barb. 252, that there is ample authority to establish the right of the plaintiff to maintain a suit in which he may both recover damages for the nuisance and remove it by the aid of the law. A further citation is made establishing the same rule, of Harrison y.Peck, 56 Barb. 252; Beir v. Cook, 37 Hun, 38; Norton V. Brownsey, 10 St. Rep. 800. Many of the cases cited are actions in equity, as the rule is the same in both actions, and in Article VII the method of restraining a nuisance is considered, as it may be invoked pending the action at common law under the provisions of the Code. An action in equity is in every respect preferable and should, unless a jury trial is desired, be adopted instead of the action given by the Code. The authorities cited will, however, be equally valuable in the equity suit and the statutory action. ARTICLE II. When the Action Will Lie. § 1660. § 1660. When action may be brought. An action for a nuisance may be maintained in any case, where such an action might have been maintained under the laws in force, immediately before this act takes effect. The provisions of section 1660 refer to the common law action of nuisance, that is to say, either to an action on the case for damages, or to an action to abate a nuisance. An equity action to restrain a wrong constituting a nuisance, is not triable by a juiy wdthin the provisions of § 968 of the Code. GoldscJnnidt v. Nezv York Steam Co. 7 App. Div. 317, citing Cogswell v. New York etc. Co. 105 N. Y. 319, and commenting upon Lefrois v. County of Monroe, 88 Hun, 109. No remedy will lie to redress a consequential injury necessarily resulting from the lawful exercise of a right granted by the sover- eign power of the State or authorized by competent municipal authority. Renwick v. Morris, 7 Hill, 575. The Legislature may authorize acts, wdiich would otherwise be nuisances, so that they become lawful. Leigh v. Wcstcrvclt, 2 Duer, 618; Williams v. N. Y. C. R. R. Co. 18 Barb. 222; Masterson v. Short, 7 Robt. 241 ; Cogszvcll V. N. Y. & N. H. R. R. Co. 48 Supr. Ct. 31 ; People v. Latv, 34 Barb. 494; People v. N. Y. Gaslight Co. 6 Lans. 467; NUISANCE. 519 Art. 2. When the Action Will Lie. Davis V. The Mayor, 14 N. Y. 507; Phoenix v. Commissioners, 12 How. I ; Radcliff's Executors v. Mayor, 4 N. Y. 195. The statutory sanction which will justify an injury by a corpo- ration to a private person without making compensation therefor, and without the consent of the owner, must be express or given by clear and unquestionable implication from the powers ex- pressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury. It may not be presumed from a general grant of author- ity, where the terms of the statute giving such authority are not imperative, but permissive. This does not confer license to com- mit nuisance, although what is contemplated by the statute can- not be done without so doing. Cogswell v. A^. K, N. H. & H. R. R. Co. 103 N. Y. 10; citing Baltimore & Potomac R. R. Co. v. Fifth Avenue Baptist Church, 108 U. S. 317. The rule that nuisance arises from the violation of a common law, and not from the violation of a public statute, applies only where the statute creating a right or imposing an obligation affixes a penalty for its violation or gives a specific remedy which, by the terms of the statute or by construction, is exclusive, and has no application where the statute itself prescribes that a par- ticular act or the property used for a noxious purpose shall be deemed a nuisance. Lawton v. Steele, 1 19 N. Y. 226, 29 St. Rep. 581, 6 Supp. 15. A public nuisance is one which affects the rights of the com- munity in general, and not the one particular person. Lansing \. Smith, 8 Cow. 146. As a place of amusement kept for gain; Tanner v. Trustees, 5 Hill, 121 ; or anything that is offensive to the morals of society; Boom v. City of Utica, 2 Barb. 104; or an unlawful erection in a public stream; Hecker w.Dock Co. 13 How. 549; People V. Vanderbilt, 26 N. Y. 287; or any obstruction therein; Moore w. Commissioners, 32 How. 184; Mayor v. Baum- hiirger, 7 Robt. 219; or a floating storehouse. Hart v. Albany, 3 Paige, 213; S. C. 9 Wend. 571. Any obstruction which leaves the navigation of a port less convenient or safe is a nuisance. People V. Norton, 5 Hun, 516; s. C. 64 N. Y. 610. So are tele- phone poles erected on the streets of a city in such a way as to incommode the public. People v. Metropolitan T. & T. Co. 64 How. 120. A telegraph cable so laid as to interfere with naviga- tion. Blanchard v. Western Union Tel. Co. 60 N. Y. 510. The 520 NUISANCE. Art. 2. When the Action Will Lie. construction of a railroad on the public street without the requi- site authority is a public nuisance. Wetmore v. Story, 22 Barb. 414; Astor V. N. V. Arcade Railway Co. 3 St. Rep. 188. To authorize the construction of a railroad upon or over a highway, where individuals own private rights or interests therein, or in the soil thereof, not only must the public right or lease be obtained, but the individual rights and interests must be lawfully acquired ; and if constructed without such acquisition the builders are liable to the owners, as to whom the railroad is a continuing nuisance. Uline v." N. Y, C. & H. R. R. R. Co. loi N. Y. 98. The unau- thorized erection and operation of an elevated railroad through the streets of a city creates a public nuisance. Negus v. City of Brooklyji, 10 Abb. N. C. 180; Caro v. Metropolitan E. R. R. Co. 46 Supr. Ct. 138. The rule in Story v. N. Y. Elevated R. R. Co. II Abb. N. C. 226, that an abutting owner is entitled to dam- ages, if light, air, and access are interfered with, applies where the street of a city is held in trust for public use as a highway, as well as where the fee, subject to such easement, is in the abutting owner. Peyser v. A^. Y. Elevated R. R. Co. 12 Abb. N. C. 275. One who carries filth in sewers through a water-course on lands of another is not relieved from responsibility because the injury is aggravated by an obstruction of the stream. Noonan v. City of Albany, 79 N. Y. 470. A building in a large city, so con- structed that snow will fall from it to the sidewalk, is a public nuisance. Walsh v. Mead, 8 Hun, 387. A house kept as a house of ill-fame, and resort of disreputable persons, is a public nuisance. Ely v. Supervisors of Niagara Co. 36 N. Y. 297. The construction and maintenance of a street railway by any individual or association of individuals, without legislation, is a public nuisance, and subjects those maintaining it to a private action, in favor of any person sustaining special injury therefrom. Fanning v. Osborne, 102 N. Y. 441. As is a tenement house in a filthy condition and calculated to breed disease. Meeker v. Van Rens- selaer, 15 Wend. 397. A bridge erected across Broadway, in the city of New York, was so held. Knox v. Nezv York, 55 Barb. 404. The keeping of a large quantity of gunpowder in a wooden building insufficiently secured, and near other buildings, is a public nuisance. Myers v. Malcolm, 6 Hill, 292. See Bradley v. People, 56 Barb. 72. So is an obstruction in a highway. Harlow v. Humnienston, 6 Cow. NUISANCE, 521 Art. 2. When the Action Will Lie. 89; Lansing V. Smith, 8 Cow. 146; Davis v. The Mayor, 14 N. Y. 506. An opening in a sidewalk in a public street left so as to be dangerous to travelers. Irwin v. Wood, 4 Robt. 438; Irwin v. Fowler, 5 Robt. 482. But where such an opening has been made with the consent of a municipality, it is not, in and of itself, a nuisance, but the consent being conditioned on certain modes of use, if the opening is kept unguarded it becomes a nuisance. Jennings v. Van Schaick, 108 N. Y. 530. Using a street for busi- ness purposes so as to obstruct travel is a nuisance. People v. Cunningham, i Den. 524. No length of enjoyment will legalize a public nuisance. Rochester v. Erickson, 46 Barb. 92 ; Ogdens- burgh V. Lovejoy, 2 T. & C. 83, affirmed, 10 Alb. L. J. 237; Snow V. Williams, 6 Hun, 468; Delaney v. Blizzard, 7 Hun, 7; Dygert v. Schenck, 23 Wend. 446; Patton v. N. V. El. R. R. Co. 3 Abb. N. C. 306 ; St. Vincent Orphan Asylum v. Troy, y6 N. Y. 108; Driggs V. Phillips, 103 N. Y. -j-] ; Van Rensselaer v. Albany, 15 Abb. N. C. 457. If a party may acquire a prescriptive right to continue a nuisance, it can only be by continuous use for twenty consecutive years ; no occupation short of that time is a bar to a complaint, unless by some act or omission he has induced the party causing the nuisance to incur large expenditure or take some action on which an estoppel can be based. Campbell v. Seaman, 63 N. Y. 568. A wrong or unlawful motive in erecting a structure, otherwise lawful, does not make the structure itself unlawful or a nuisance. Chenango Bridge Co. v. Paige., 83 N. Y. 178. An unlawful use thereof may be complained of and restrained, but the structure cannot be destroyed. Building materials depos- ited in the street arc not nuisances if properly guarded, and offering no obstruction or unreasonable peril to travelers. Village of Seneca Falls v. Zalinski, 8 Hun, 571. Obstruc- tions made in aid of commerce, which do not materially in- jure free navigation, are not nuisances. Delaware & H. C. Co. V. Lawrence, 2 Hun, 163, affirmed, 56 N. Y. 612. Branches of a tree overhanging the road are not a nuisance without proof of special damages. Countryman v. Lighthill, 24 Hun, 405. A railway bridge constructed under legal authority is not a nuisance. Crooke V. Brooklyn, etc. R. R. Co. 8 Week. Dig. 252. The keep- ing of gunpowder is not necessarily a nuisance ; it is a question for the jury. Heeg v. Licht, 80 N. Y. 579. A conductor pipe. 522 NUISANCE. Art. 2. When the Action Will Lie. designed to carry water from the roof to the ground, when con- structed with due care, is not unlawful, although its mouth is toward the sidewalk and it discharges thereon. Wenzlick v. Mc- Cotter, 87 N. Y. 122. A sign around a telegraph pole in the street, close to the curb, is not necessarily a public nuisance. Goldsmith v. Jones, 43 How. 415. An encroachment upon a highway, which does not prevent its use for ordinary purposes, is not a nuisance per se. Howard v. Robbins, i Lans. 63. The owners of swampy lands are not guilty of a public nuisance by refusing to drain them. Wood- ruff \. Fisher, 17 Barb. 224. A dangerous wall, remote from the street, is not a public nuisance so as to render the municipality liable for the consequences of a failure to direct its removal. Cain V. Syracuse, 29 Hun, 105. A dam across a stream, which is technically navigable, is not a nuisance, although exceeding the authorized height and not provided with a lock as provided by statute. Groat v. Moak, 94 N. Y. 115. A railroad company is not guilty of a nuisance in using its premises in a proper and legitimate manner. Briesen v. Long Island R. R. Co. 31 Hun, 112. What is mere negligence in neglecting to remove ice and snow from a sidewalk, does not, of itself, constitute a nuisance. Dicker son v. Mayor of New York, 92 N. Y. 584. A dam, where a navigable river is incapable of navigation, is not a nuisance. Matter of State Reservation at Niagara, 37 Hun, 537. A scaffold suspended from the roof of a house, for the purpose of making necessary repairs, is not a nuisance. Hexamer v. Webb, loi N. Y. 377. One doing business on a street in a populous city has the right to temporarily obstruct the sidewalk in front of his place of business for the purpose of loading merchandise, the right, however, to be exercised in a reasonable manner so as not unnecessarily to incumber the sidewalk. When thus reasonably exercising such right, the occupant of the premises is not required to furnish those passing upon the sidewalk a safe passage around the obstruction. Welsh v. Wilson, loi N. Y. 254. A tradesman may convey goods from the street to his adjoining store and from the store to the street, and for that purpose may temporarily obstruct passage on the sidewalk, but such obstruction must not only be reasonable with reference to the business of the trades- man but also with reference to the rights of the public. Callanan V. Oilman, 107 N. Y. 360. NUISANCE. 523 Art. 2. When the Action Will Lie. Where there is a conflict of evidence as to whether defendant had a prescriptive right to use flush boards on his dam, the ques- tion is one for the jury. An owner of a dam who raises the same and thus floods the land of a superior proprietor is hable for the damage thus occasioned. Where it is shown that former ov\^n- ers of a dam used flush boards thereon, it is competent to prove in rebuttal that they paid for the right to do so. Coloney v. Farrow, 91 Hun, 82, 36 N. Y. Supp. 164, 71 St. Rep. 100. One who engages in blasting rock is bound to exercise reason- able care to protect adjoining property from injury, and where he uses large and numerous concurrent blasts which cause injury, when small ones would have answered the purpose, although not so expeditiously or with as much profit to him, he is liable for the damages occasioned thereby. Nczvellw. Woolfolk,gi Hun, 21 1, 36 N. Y. Supp. 327, 71 St. Rep. 129. Sections 24 and 28 of the General Railroad Act of 1850 do not authorize a railroad company, without the sanction of the courts or public authorities, to obstruct and practically discontinue a street, to the injury of the property owners, although it substi- tutes another at a short distance therefrom. Bnchhol.z v. N. Y. L. E. & W. R. R. Co. 148 N. Y. 640,43 N. E. Rep. 76, reversing 66 Hun, 377, 21 N. Y. Supp. 503, 50 St. Rep. 670. The use of a barn as a livery stable so near plaintiff's awelling as to render the use of the dwelling disagreeable, uncomfortable and unwholesome, is a private nuisance. Robinson v. Smith, 25 St. Rep. 647, 7 Supp. 38. Where a covenant in a deed is of such a nature as to create an easement which passes to a lessee as an appurtenance, an unlaw- ful obstruction of the easement is a continuing nuisance, for which such lessee may recover damages independently of the relation of the parties with respect to the covenant. The unlaw- ful management and operation of a railroad which causes damage to adjoining premises is a nuisance for which the lessee of such premises may recover damages. Avery v. New York Central R. R. Co. 26 St. Rep. 279, 7 Supp, 341. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner shall be driven from his dwelling, it is enough that the enjoyment of life and property be rendered uncomfortable. It is not necessary to prove negligence in the 524 NUISANCE. Art. 2. When the Action Will Lie. conduct of such offensive business in order to sustain an action for injuries of such a character, the damages in such case being a necessary consequence of or incident to the business itself. The statutory authority which will justify an injury to private prop- erty and afford immunity for acts which would otherwise be a nuisance, must be express or must be a clear and unquestionable implication from the powers expressly conferred, and it must ap- pear that the Legislature contemplated the doing of the very act which occasioned the injury. The fact that a gas company is in- corporated and empowered to carry on the business of manufac- turing and distributing gas, does not, therefore, take it out of the operation of the rule of law applicable to ordinary common law nuisances so far as the conduct of its business is concerned upon the premises acquired for that purpose. Bolian v. Port Jcrvis Gas Co. 122 N. Y. 18, 33 St. Rep. 246. The rule that legal liability in damages cannot result from acts done by a corporation in the performance of a public duty, by express legislative authority resulting in consequential injury to others, and which as between individuals would be regarded as a nuisance, is subject to the exception that the authority which will shelter an actual nuisance must be express or a clear and unques- tionable implication from powers conferred, certain and unambigu- ous and such as to show that the Legislature must have intended and contemplated the doing of the very act in question. Author- ity from the Legislature to a municipal corporation to acquire property and construct thereon a building and machinery for the '/ purpose of dumping waters will not authorize it to construct such building so near to adjoining property as to injuriously affect it by the noise and vibration. Morton v. Mayor of New York, 140 N. Y. 207, 55 St. Rep. 413. iP It is also said in Hill v. The Mayor, 139 N. Y. 495, that the rule that a municipal corporation engaged in the performance of a public duty, upon which the public health and comfort depends, and acting under authority of the Legislature, is not liable for consequential damages to others, even though its act would amount to a nuisance as between individuals; this authority must be express or a clear and unquestionable implication from powers conferred ; it must be certain and unambigious, and such as to show that the Legislature must have contemplated the very act in question. So, in Cogswell v. New York, New Haven & NUISANCE. 525 Art. 2. When the Action Will Lie. Hartford R. R. Co. 103 N. Y. 10: "But the statutory sanction which will justify an injury to private property must be express or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury." In Mundy v. Nctv York, Lake Erie, etc. R. R. Co. 75 Hun, 479, 57 St. Rep. 367, 27 Supp. 469, it was held that as the defendant justified under a statutory' right, such authority must be explicit to support the impairment of private property. In Van Duzer V. Elmira, Cortland, etc. R. R. Co. 75 Hun, 487, 57 St. Rep. 355, 27 Supp. 474, the same rule was held. Municipal corporations are liable for their acts in creating or maintaining a nuisance. Bolton v. Village of New Rochelle, 84 Hun, 281, 32 Supp. 442, 65 St. Rep. 717. Municipal consent to the maintenance of a coal hole in a sidewalk may be inferred from its uninterrupted continuance for over a year without objection. Kiiechenmeister v. Brozvn, 13 Misc. 139, 34 Supp. 180, 68 St. Rep. 230. User for twenty years of a cellar-way extending for about five feet into the street, without apparent objection by the city authorities, is evidence from which their consent to its construction may be inferred. Jorgenson v. Squires, 144 N. Y. 280, 39 N. E. Rep. 373, 63 St. Rep. 686, affirming 66 Hun, 633, 50 St. Rep. 161, 21 Supp. 383. No right to maintain a public nuisance can be obtained by prescription. Kelley v. Mayor, 89 Hun, 246, affirming 6 Misc. 615, 56 St. Rep. 845, 27 Supp. 164. Express legislative authority is requisite to justify the main- tenance of a dump for refuse by a city which creates a nuisance resulting in special injury to individuals, and they in such case are entitled to compensation therefor. Cornell v. Mayor of New York, 20 Supp. 314. Where defendant purchased property which for many years had an inclined passageway excavated in the sidewalk to lead to the basement of the building, and had leased the same, and while it was in the possession of a tenant, plaintiff passing along the side- walk fell into the passageway, Avhich was unguarded, and was injured, it was held that the depression in the sidewalk was a nuisance and that defendant, by leasing the premises in the con- dition they were, was responsible for its maintenance and liable for plaintifif's injury. McGrath v. Walker, 64 Hun, 179, 46 St. 526 NUISANCE. Art. 2. When the Action Will Lie. Rep. 158, 18 Supp. 915. The property owner who avails himself of an implied license to make an opening in the sidewalk, does so under an implied condition to keep it in a safe condition and is liable for injuries to third persons resulting therefrom in case the village is compelled to pay therefor. Trustees of Ca?iandaigiia V. Foster, 81 Hun, 147, 30 Supp. 686, 62 St. Rep. 639. While the owner of land abutting on a public street may, owing to the necessities of the case, encroach on the rights of the public to a limited extent and for a temporary purpose, the obstruction must be reasonably necessary for the transaction of business and must not unreasonably interfere with the rights of the public. Such an owner may not lawfully supply the defects in his premises by fraudulently monopolizing the sidewalk in front thereof. An unnecessary or unreasonable use of a sidewalk or street to the serious inconvenience of the public is a nuisance per se. Flynn v. Taylor^ 127 N. Y. 596, citing Callanan v. Gilman, 107 N. Y. 360; Welsh V. Wilson, loi N. Y. 254. Maintaining an awning attached to the front of a store and pro- jecting over the sidewalk in an insecure position, is a nuisance, though the maintenance of the awning is authorized by the city. Morris v. Barrisford, 9 Misc. 14, 59 St. Rep. 698, 29 Supp. 17, distinguishing City of Rochester v. Campbell, 123 N. Y. 405. The temporary use of coal holes in the sidewalk for other purposes than discharging coal, if required by peculiar exigencies, as any construction ordered by the Board of Health, does not, if they are guarded, constitute a nuisance per se. Maltbie v. Bolting, 6 Misc. 339, 56 St. Rep. 243, 26 Supp. 903. An action for injuries received by falling down a vault opening in the sidewalk was held to be for a nuisance and not for a negligent injury in Jorgenson v. Minister of Reformed Loiv Dutch Church, 7 Misc. i, 57 St. Rep. 842, 27 Supp. 318, afifirming 23 Civ. Pro. R. 232, 26 Supp. 876. The keeping of gunpowder or explosives in a place where it is liable to cause injury to adjacent property or to passers-by, is a private nuisance which raises a liability for resulting injury irre- spective of negligence in its care. Lounsbury v. Foss, 80 Hun, 296, 61 St. Rep. 829, 30 Supp. 89. The discharge of fireworks on a public street in a city, is a nuisance /^r se, and when a city, through its officers, authorizes it, the city becomes liable for injury resulting. Spier v. City of Brooklyn, 4.6 St. Rep. 561, 19 NUISANCE. 527 Art. 2. When the Action Will Lie. Supp. 665, affirming 45 St. Rep. 261, 18 Supp. 170. Where de- fendant's smelting furnace was shown to have emitted sparks in the ordinary conduct of its business, and plaintiff's property was ignited and burned by them, it was held that a verdict in his favor should be sustained whether it was expressly found to be a nuisance or not. Ca^npbell v. United States Foundry Co. 73 Hun, 576, 57 St. Rep. 265, 26 Supp. 165. A private corporation, in constructing its bridge over a river, undertook to maintain it for the free use of foot passengers, and erected a platform approach on the highway leading to the foot- way of the bridge ; Jicld, that the corporation was liable for in- juries received by plaintiff on the platform and due to the defective condition of its flooring, unless plaintiff's negligence contributed to the injury, since defendant's structure was an interference with the highway and imposed upon defendant an obligation to keep same in repair, and that failure to do so constituted nuisance. Murphy v. Suburban Rapid Transit Co. 40 St. Rep. 228, 15 Supp. 837. Under an allegation that plaintiff's horse was injured by run- ning against a barbed wire fence which defendant had erected within the highway, it was held that if the fence was in the high- way it was a nuisance for which an action would lie. Anderson v. Young-, 66 Hun, 240, 49 St. Rep. 480, 21 Supp. 172. The test of the permissible use of one's own land is not whether the use or the act causes injury to his neighbor's property, or that the injury was a natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of the property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors and having in view also public policy. Booth v. Rome, Watertown & Ogdens- burg R. R. Co. 140 N. Y. 267, 55 St. Rep. 656. In an action for damages occasioned to plaintiff's land by a flood claimed to have been caused by an embankment maintained by defendant near the land, which obstructed the natural flow of the water of a river, and where it appeared that a culvert placed by defendant's predecessor in the embankment for the escape of water accumulated by a freshet, was insufficient ; it was held that the question as to the cause of the flood be properly submitted to the jury and they were to determine whether the freshet was an 528 NUISANCE. 1 Art. 2. When the Action Will Lie. extraordinary one which could not have been anticipated. Mundy v. New York, Lake Erie, etc. R. R. Co. 75 Hun, 479, 57 St. Rep, 367, 27 Supp. 469. Where a street railway company created an obstruction in the street by use of its snow plow, so that an injury was caused by such obstruction, a finding was justified that the obstruction was an actionable nuisance. Schrank v. Rochester R. Co. 83 Hun, 290, 31 Supp. 922, 64 St. Rep. 754. A railroad franchise gives the company no right to maintain a large coal pocket in the neigh- borhood of a closely populated section of a city in such manner as to constitute a private nuisance. Spring v. D. L. & IV. R. R. Co. 88 Hun, 385, 34 Supp. 810, 68 St. Rep. 821. The defendant had a powerful steam whistle on its factory near a railroad station and only a few feet above the platform of the station, and the re- peated sounding of the whistle frightened the horse of the plain- tiff, who was delivering a load at the station, causing the horse to become ungovernable whereby plaintiff was thrown from his wagon and injured; hcld,t\vaX defendant was liable for the in- jury irrespective of the question of plaintiff's negligence. Albee v. Chappaqiia Shoe Manufacturing Co. 62 Hun, 223, 42 St. Rep. 566, 16 Supp. 687. A landlord who lets premises on which there is an existing nuisance of which he has, or by the use of dili- gence could have obtained knowledge, is liable for injuries to the tenant or his family occasioned thereby without negligence on their part. Schmidt v. Cook, 12 Misc. 449, 33 Supp. 624, Gy St. Rep. 330. No lapse of time or mere inaction on the part of the owner of real estate during the erection and maintenance of a nuisance or unlawful structure injurious to his rights, is sufficient to defeat his rights to damages unless by a continuance long enough to effect a change of title in the property injured, and so long as the legal right exists, the owner is entitled to maintain his action in equity to restrain the violation of his rights. Galway v. Metropolitan Elevated Ry. Co. 128 N. Y, 132, affirming 35 St. Rep. 628, 13 Supp. 47, Where plaintiff, who occupied a house adjoining the one owned and rented by defendant, went to defendant's house to get her children, who had passed through an opening in the boundary fence in the rear to play in defendant's yard, and coming down defendant's steps with them, fell through a defective step, of the condition of which defendant had notice, it was held that plaintiff NUISANCE. 529 Art. 2. When the Action Will Lie. was on defendant's premises as a mere licensee, as to her the defect was a nuisance, and that she could not recover damages from defendant for her injury. Sterger v. Van Sicklen, 132 N. Y. 499, 44 St. Rep. 863. Negligence of the defendant is not ordinarily an essential ele- ment of an action for damages sustained by reason of a nuisance. Lamming v. Galusha, 47 St. Rep. 831, reversing 63 Hun, 32, 43 St. Rep. 592, 22 Civ. Pro. R. 16, 17 Supp. 328. Temporary occu- pation of a street, the fee of which was in the defendant, for the purpose of laying a water pipe, is not a nuisance. Dexter v. Riverside and Osivcgo Mills, 39 St. Rep. 933, 15 Supp. 374. A stream not naturally navigable, the water of which is set back by a dam erected by private parties at the foot of a lake into which it flows, so that it can be navigated, does not thereby become a public navigable stream, and a highway bridge erected across it is not a public nuisance. Ten Eyck v. Town ofWarwicky 75 Hun, 562, 27 Supp. 536, 59 St. Rep. 636. The owners of a pier who become such during the running of a valid outstanding lease, are not responsible for a nuisance created thereon during the existence of a precedent estate, where they have had no notice thereof. Before a grantee or devisee of property upon which there is an existing nuisance can be held for damages, he must have notice of the nuisance and a reasonable time to abate it. Ahearn v. Steele, 115 N. Y. 203, 26 St. Rep. 295. The erection and operation of steam pumps by a railroad com- pany near a highway, as a necessary incident to the operation of the railroad, being within the franchise granted by the Legis- lature under the General Railroad Act, held, not to be in itself a nuisance, and on the facts not actionable as such. Pettit v. N. V. Central, etc. R. R. Co. 80 Hun, 86, 61 St. Rep. 718, 29 Supp. 1137. A superstructure across railroad tracks of a height in- suflficient to allow brakemen on freight trains to stand on the cars while passing under it, is not a nuisance /rr se. Neffv. Nezu York Central & Hudson River R. R. Co. 80 Hun, 394, 62 St. Rep. 50, 30 Supp. 323. A string piece used to cover a water pipe leading to buildings on a pier and to prevent teams from colliding, is not a nuisance j^^cr sc. Gottsberger v. Mayor, 9 Misc. 349, 61 St. Rep. 247, 29 Supp. 592. [Special Actions — 34.] 530 NUISANCE. Art. 3. Who Can Maintain the Action. ARTICLE III. Who Can Maintain the Action. Public or common nuisance affects the community at large or some considerable portion of it, and private nuisance affects only one person or a determinate number of persons. Amer. Ency. of Law, Article Nuisance, page 926, citing Lansing v. Smith, 8 Cow. 146. The people, through the attorney-general, may maintain an ac- tion for the removal of an alleged nuisance. People v. Metropolitan T. &■ T. Co. 64 How. 120, II Abb. N. C. 304, citing People v. Vanderbilt, 26 N. Y. 287, holding that a nuisance can be abated at the suit of the people irrespective of the question whether any damage arises therefrom. But an individual cannot maintain an action for the abatement of a public nuisance. Spader v. New York Elevated R. R. 3 Abb. N. C. 467. Since a party must sus- tain some specific damage peculiar to himself before he can maintain such action. Pierce v. Dart, 7 Cow. 609. Therefore a riparian owner cannot maintain an action for the continuous mooring of rafts to his land so as to be an obstruction to the river, as it is a public nuisance. Moore v. Jaekson, 2 Abb. N. C. 211. Owners of a church cannot maintain an action for a nuisance caused by noise of a railroad. First Baptist Church v. Utica & Schenectady R. R. Co. 6 Barb. 313, although the contrary is held in First Baptist Church v. Schenectady & Troy R. R. Co. 5 Barb. 79. The rule is that an individual cannot maintain a private action for damages on account of a public nuisance, unless the injury done to him be direct or special or such as is not common to others affected by the nuisance. Dougherty v. Bunting, i Sandf. i. It seems that the mere fact of a business being carried on which may be shown to be immoral and therefore prejudicial to the neighborhood, furnishes of itself no ground for equitable interference at the suit of a private person, although the use of the property may be unlawful or unreasonable, unless special damage can be shown, a neighboring property owner cannot ha\'e a private right of action, and that only the public authorities acting in the common interest can interfere for the suppression of a com- mon nuisance, and an unlawful use of property which renders the NUISANCE. 531 Art. 3. Who Can Maintain the Action. premises of a neighbor unfit for comfortable or respectable occu- pation or enjoyment, is a private nuisance against which the pro- tection of the court may be invoked, although the use complained of also constitutes public nuisance. Cranfordv, Tyrell, 128 N. Y. 343. A hotel owner whose business has been injured by an unlaw- ful obstruction of the street, by which travel has been diverted, may maintain an action in equity to restrain the continuance of the nuisance and for damages. Buchholz v. N. V., L. E. & W. R. R. Co. 148 N. Y. 640, 43 N. E. Rep. 76, reversing 66 Hun, 377, 21 N. Y. Supp. 503, 50 St. Rep. 670. A tenant who takes his lease with knowledge of the existence of a public nuisance affecting the premises cannot recover damages from the city, unless the nuisance was increased in some way during his tenancy. Yoos w. City of Rochester, 92 Hun, 481, ^6 N. Y. Supp. 1072, 72 St. Rep. 412. An individual cannot maintain an action for a public nuisance without proof of special damages ; but any special damage, how- ever small, will authorize the action. Lansing v. Smith, 8 Cow. 146; S. C. 4 Wend. 9; Lansing V. Wisiuall, 5 Den. 213 ; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Anderson v. R. L. ete. R. R. Co 9 How. 553; Dougherty v. Bunting, i Sandf. i ; DeLaney v Blizzard, 7 Hun, 7; Morgan v. City of Binghamton, 32 Hun, 602 Burnett v. Bagg, 67 Barb. 154; Trenor v. Jaekson, 46 How. 389 Milhau V. Sharp, 27 N. Y. 612; Francis v. Sehoellkopf, 53 N. Y 152; Negus V. City of Brooklyn, i Civ. Pro. R. 471 ; Adams v Pophani, 76 N. Y. 41 1 ; Gillispie v. Forrest, 18 Hun, [lO; Spader V. N. Y. Elevated R. R. Co. 3 Abb. N. C. 467; Crooke v. Ander- son, 23 Hun, 266; Callanan v. Oilman, 107 N. Y. 360. As to what constitutes a public nuisance and what must be averred, sec Knox V. The Mayor, 55 Barb. 404. When an act, besides being a public nuisance, will be specially injurious to several separate owners of real estate, they can join in an action, and where the . question is one of common or general interest to many persons, or where the persons who might be made parties are many, and it may be impracticable to bring them all before the court, one or more may sue for the benefit of all, and the various allegations in the complaint, in relation to the damages which will be caused to such other parties, are not irrelevant. Astor v. N. V. Arcade Railway Co. 3 St. Rep. 188. No matter how numerous the persons may be who have sustained a peculiar injury or damages, 532 NUISANCE. Art. 3. Who Can Maintain the Action. each is entitled to compensation for his injury and has a cause of action against the persons erecting or maintaining the nuisance. Francis v. Sckoclkopf, 53 N. Y. 152. Private nuisances are those that result from the violation of pri- vate rights and produce damages to but one or a few persons. Wood on Nuisances, § 15. An action will lie by reason of the erection of a house by defendant upon the line of plaintiff's land, so that the eaves and gutters project. Aiken v. Benedict, 39 Barb. 400. A person is liable for the injurious consequences that may flow from the invasion of a legal right of his neighbor. Tremain V. Cohoes Co. 2 N. Y. 163; Bellows v. Sackctt, 15 Barb. 96; Thomas Y. Kenyon, i Daly, 132; Bensen v. Suarez, 28 How. 511. Failure to provide suitable gutters so that the building of another is injured, is a nuisance. Gilbert v. Beach, 4 Duer, 423. The erection of an embankment on land, so as to cause water to over- flow lands of another, is a nuisance. Goodale v. Tuttlc, 29 N. Y. 467. Defective closets or water pipes, or negligent maintenance of anything which is a nuisance is actionable. Robbins v. Moimt, 4 Robt. 553 ; Moore v. Goedel, 34 N. Y. 527. Negligent blasting, to the injury of an individual, is an actionable nuisance. Hay v. Cohoes Co. 2 N. Y. 159; Tremain v. Cohoes Co. 2 N. Y. 163. Posting placards in the vicinity of plaintiff's place of business, calculated to prevent people from trading with him, is a nuisance. Gilbert v. Mickle, 4 Sandf. Ch. 357. Allowing a horse with a contagious disease to go in the street or on lands of another. Mills V. N. Y. & H. R. R. Co. 2 Robt. 326; Fisher v. Clark, 41 Barb. 329. If a dam sets back waters, so that they become stagnant and interfere with health, it is a nuisance. People v. Town- send, 3 Hill, 479. One who, in damming back water, detains it unreasonably, or lets it off in unreasonable quantities, commits a nuisance. Merritt v. Brinkerhoff, 17 Johns. 306. Whenever the use of water by a proprietor is in excess of his natural right, and operates injuriously to another owner, it is a nuisance. Thomas v.. Brackley, 17 Barb. 654; Corning v. Troy, 40 N. Y. 191. See Clinton v. Myers, 46 N. Y. 51 1 ; Van Hoesen v. Coventry, 10 Barb. 508. It is a nuisance to interfere with the drainage of lands; Trustees v. Youmans, 45 N. Y. 362; or to charge the soil with water. Pixlcy v. Clark, 35 N. Y. 520. A slaughter-house, if off'ensive, is a nuisance. Brady v. Weeks, 3 Barb. 157; Catlinv. Valentine, 9 Paige's Ch. 574: DiiBois v. Budlong, 15 Abb. 154; NUISANXE. 533 Art. 3. Who Can Maintain the Action. Peck V. Elder, 3 Sandf. 126. Whenever any offensive trade becomes injurious an action lies. Blunt v. Aike?i, 15 Wend. 522. A livery stable or barn may be a nuisance. Pickard v. Collins^ 23 Barb. 444. So noisome smells, if offensive to the senses, or so as to produce physical discomfort, or to interfere materially with the enjoyment of property. Cropsey v. Murphy, i Hilt. 126; Brady v. Weeks, 3 Barb. 157; Manhattan Gaslight Co. v. Barker, 36 How. 258; Francis v. Schoelkopf, 53 N. Y. 152. An injury from noxious vapors must be apparent and sensible to amount to a nuisance, and not dependent on scientific tests. Vanderburg v, Truax, 4 Den. 464. Smoke may constitute a nuisance where it produces tangible injury, as discoloration of clothes, as from a lime- kiln. HutcJiins v. Smith, 63 Barb. 252. Dense masses of smoke, injurious to the neighbors, is a nuisance. Campbell v. Seaman, 2 T. & C. 231. Where one manufacturing brick upon his lands uses a process by which noxious gases are generated, which are borne by the winds upon the adjacent lands of his neighbor, injuring and de- stroying vegetation, this is a nuisance and the party injured may maintain an action. It is immaterial that the damage is done to ornamental trees and shrubbery only; articles of luxury are as much under the protection of the law as articles of necessity. So it is immaterial that the injury is only occasional, if it may be expected whenever a kiln is burning unless the winds blow the poisonous gases away from plaintiff's land. It does not affect plaintiff's right that the brick-yard was used before plaintiff pur- chased his land. The authorities on the question of nuisance, particularly as applicable to brick burning, collated. Campbell v. Seaman, 63 N. Y. 568. To constitute a nuisance it is not neces- sary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses and which renders the enjoyment of life or property uncomfortable. Catlin v. Valentine, 9 Paige, 575 ; Brady v. Weeks, 3 Barb. 157. Every person has a right to have the air diffused over his premises in its natural shape free from all artificial impurities. No one has a right to interfere with the supply of pure air more than he has to interfere with his neigh- bor's soil ; therefore, every use of one's property that produces an unwarrantable impregnation of the atmosphere with foreign sub- stances to the detriment of another is a nuisance and actionable 534 NUISANCE. Art. 3. Who Can Maintain the Action. as such. This is true whether the injury arises from smoke, noxious vapors, noisome smells, or from loading the atmosphere with dust, chaff or other foreign substances. Wood on Nuisances, >> 429- Tallow factories and melting-houses have been held nuisances. Blunt V. Hay, 4 Sandf. Ch. 363 ; Hansee v. Hummond, 39 Barb. 89; Cropsey V. Murphy, i Hilt. 126. A tannery, where offensive stenches are liberated is a nuisance. Fisher v. Clark, 41 Barb. 339; Thomas v. Brackney, 17 Barb. 654; Francis v. Schoelkopf, 53 N. Y. 152. So of a soap-boiling establishment. Hoivard v. Lee, 3 Sandf. 281. A dam erected to such a height as to set back water upon another's mill is a nuisance. Rothery v. N. V. Rubber Co. 24 Hun, 172, and cases cited. A steam manufacturing com- pany adjoining dwelling-houses which jarred and injured them, held a nuisance. McKcon v. Sec, 51 N. Y. 300. A structure which, though not hurtful to health or noxious to the senses, inter- feres with the comfortable enjoyment of life or property, is a nui- sance within the rule that any person who sustains a private injury from the erection or continuance of a nuisance may maintain an action therefor. Trcnor v. Jackson, 15 Abb. (N. S.) 115. A dog in the habit of coming on plaintiff's premises i^nd barking and howling about his dwelling by day and night, to the great annoy- ance of his family, is a nuisance. Brill v. Flagler, 23 Wend. 354. The rule is, that if one carry on a lawful business in such a way as to prove a nuisance to his neighbor he is answerable in damages. Fish V. Dodge, 4 Den. 311. Where the plaintiffs consented to the building of a dam by defendants on condition that the work should be done so as not to injure them, but the work was so unskillfully executed as to set the water back on plaintiffs' wheels, the erection is a nuisance, notwithstanding the conditional license. Brow v. Bowcn, 30 N. Y. 519. One who obtains permission to lay gas pipe in a public street is bound to restore it to its former condition or is liable for damages. McMamus v. Citizens Gaslight Co. 40 Barb. 380. Ejecting a stream of air and dirt through a pipe from a factory across a tow- path of a canal, whereby animals are frightened, is a nuisance. Conklin v. Phanix Mills, 62 Barb. 299. It is a nuisance for one to dig a pit or leave a dangerous opening on his own land adjoin- ing a public highway so that those using it with ordinary caution may fall in it. Wright v. Sanders, 3 Keyes, 323 ; Davenport v. NUISANCE. 535 Art. 3. Who Can Maintain the Action. Buchnan, 37 N. Y. 568; Vale v. Bliss, 50 Barb. 358. It is not necessary the pit should be in the street to be a nuisance. Bond V. Smith, 7 St. Rep. 829; s. C. 44 Hun, 219. A gas works may be a nuisance according to its location and amount of injury it inflicts. Car hart v. Atiburn Gaslight Works, 22 Barb, 297. Discharge of refuse from a cheese factory, so as to render water unwholesome and offensive, is a nuisance. Snoiv v. Williajus, \6 Piun, 468. Defendant erected on his own lands a dam a short distance from his own house on a small stream ; the water of the pond held by the dam became stagnant, and became filled with unwholesome matter which poisoned the atmosphere, rendered the plaintiff's premises dangerous to life and health, and depreci- ated its value. Held, a nuisance. Adams v. Popham, y6 N. Y. 410. It seems that to navigate a steamboat by the use of an un- inspected boiler is a nuisance, and proof that it was done in viola- tion of an express statute dispenses with the necessity of proving other negligence. Van Norden v . Robinson, ^^ Hun, 567. Where a pond maintained by defendant, for manufacturing purposes, upon land belonging to the plaintiff, and which joins other lands belonging to him, is a common nuisance, and especially injurious to plaintiff, he may bring an action to have the pond removed and the defendant restrained from restoring it, even though, by the terms of the deed by which the lands were conveyed to defend- ant by a former owner, the right to maintain the pond is expressly reserved. Leonard v. Spencer, 34 Hun, 341, affirmed, 108 N. Y. 338. The Legislature has power to declare places or property used to the detriment of public interests or the injury of health, morals or welfare of community, public nuisances, although not such at common law. This power may not be used arbitrarily where no public right or interest is involved. If the court can judicially see that the statute is a mere invasion or was for the purpose of individual oppression, it may be set aside as unconstitutional. It seems a public nuisance may only be abated by the individual, where it obstructs the private rights or interferes with his enjoy- ment of a right common to many, and he thereby sustains a special injury. Lazvton v. Steel, 1 19 N. Y. 226, affirmed 6 Supp. 1 5. The use of a pier by a city as a dumping ground, will not be interfered with by injunction, unless it is shown that the plaintiff would sustain not only special but irreparable injury. Hill v. Mayor, 15 Supp. 393, 139 N. Y. 495. 536 NUISANCE. Art. 3. Who Can Maintain the Action, The habitual use of a sidewalk or highway to the serious incon- venience of the public is a nuisance per sc. When an unreasona- ble use of a public highway is shown, and it also appears that such unreasonable use causes special damages to an individual, he has a personal right of action to compel the abatement of the nuisance. Flynn v. Taylor, 127 N. Y. 596. One carrying on a lawful business in such a way as to prove a nuisance to his neighbor is liable therefor. It is not necessary the neighbor be driven from his dwelling; it is enough that enjoy- ment of life and property is rendered uncomfortable ; although the acts complained of are inseparably connected with the carry- ing on of the business and the resulting damages a necessary con- sequence, if those acts constitute a nuisance per se, it is not necessary to show negligence in order to sustain a recovery. A use which produces noxious vapors and smells in a neighborhood, resulting in material injury to the property and the comfort of those dwelling there, is not reasonable. Bohan v. Port Jervis Gas- light Co. 122 N. Y. 18. Where a municipal corporation constructed sewers so as to dis- charge sewage into a stream above plaintiff's pond, the water of which he used for domestic purposes and propagating fish, render- ing the water unfit for use and covering the banks with filth and sediment, it was held a nuisance. Chapman v. City of Rochester, no N. Y. 273. As to when use of street by horse-car company is a nuisance, see Hussner v. Brooklyn City R. R. Co. 114 N. Y. 433. A tenant does not become responsible for a nuisance by accept- ance of a lease ; it must appear that he had actual or constructive notice of the existence of a nuisance. The landlord is bound to abate a nuisance. Timlin v. Standard Oil Co. 126 N. Y. 514. A lawful business may not be enjoined as a nuisance merely because it is undesirable and offensive to adjoining proprietors ; but where in itself or the manner in which it is conducted positive harm is inflicted and the rights of others are materially affected and impaired, then the law will intervene to prevent a use by one, of his own property, which, sensibly lessens or destroys the enjoy- ment by others of their own. So held where the exhibition of a puppet show attracted and detained a crowd upon the sidewalk in front of plaintiff's store, which materially impeded ingress or eo-ress thereto and therefrom and interfered with the transaction NUISANCE. 537 Art. 3. Who Can Maintain the Action. of plaintiff's business. Jacques v. National Exhibit Co. 1 5 Abb. N. C. 250. The use of premises by a tradesman must be reason- able, and he cannot produce in his show windows highly sensa- tional exhibitions, calculated to draw a crowd amounting almost to a mob, and thus create a public street nuisance. Elias v. Sutherland, 18 Abb. N. C. 126. See, 2X^0, People v. Mayor, 18 Abb. N. C. 123. The former case contains a valuable note on the obstruction of sidewalks for business purposes, citing a large number of cases upon that point. A hospital for the care of sick infants, including such as might, after admission, develop contagious diseases in the residential part of a great city, although not a nuisance of itself, may, by reason of features inseparable from its maintenance including the noise of patients, their attendant removal and death, and the probabilities of contagious diseases, make a proper case for an injunction against it. The question is one of reasonableness or unreasonableness in the use of the property, which is largely de- pendent upon its locality and its surroundings. Gilford v. Babies Hospital, 21 Abb. N. C. 159. Within the rule that it is not necessary to a right of action for a nuisance to an adjoining occupant, that he should be driven from his dwelling by reason thereof, but that it is enough that his enjoyment of life and property is rendered uncomfortable thereby, the operation of a steam engine and dynamos to produce electric light for use in defendant's hotel, in such a place therein that their noise and constant vibration materially interfered with ordi- nary conversation in the parlor of plaintiff's adjoining house, and with sleep at night, and caused some of the occupants to become sick, is a nuisance, where it is unnecessary and results from some defect in the machinery which can be remedied, or where the plant can be located in some other part of the hotel. Such a noise is not to be regarded as incident to city life, which residents of city must submit to. Yocum v. Hotel St. George Co. 18 Abb. N. C. 340. A box factory next a dry -goods store, which causes damage or annoyance to a neighbor, is a nuisance. Catlin v. Patterson, 10 St. Rep. 724. So is building a house in such a way and of such poor material that it falls and injures the adjoining property. jfervis v. Baxter, 52 Supr. Ct. 109. Where a municipal corporation, without the pretence of author- 538 NUISANCE. Art. 3. Who Can Maintain the Action. ity, and in direct violation of a statute, assumes to grant to a private individual the right to obstruct one of its streets while in the transaction of his private business, and for such privilege takes compensation, it must be regarded as itself maintaining a nuisance so long as the obstruction is continued, by reason of or under the license, and is liable to damages naturally resulting therefrom to a third person. Cohen v. Mayor of New York, 113 N. Y. 532. An adjacent occupant of a building has no right to appropriate the sidewalk for the purpose of his business by backing or placing vehicles upon it and thereby obstructing or preventing the use of it by persons passing along the street on foot. Richardson & Boynton Co. v. Barstoiu Stove Co. 36 St. Rep. 983. A fence erected and maintained upon or near a division line, of such a dangerous character as to cause serious injury and damage to the animals of the adjoining owner that come in contact with it, is a nuisance. Rowland y. Baird, 18 Abb. N. C. 256. A grantee who gathers into an artificial sluiceway or sewer all the filth there is under premises and empties upon his grantor's land maintains a nuisance. Van Rensselaer v. City of Albany, 15 Abb. N. C. 457. A coal hole left open and unguarded in the sidewalk, even though the opening was made by a license from the city, is a nuisance. Where such an opening has been made with the consent of the city it would not in and of itself be a nuisance, but the consent being conditioned upon certain modes of use, if the opening is left unguarded it becomes a nuisance. yennings v. Van Schaick, 108 N. Y. 530. Privies connected with a public school, and drained into a small open brook flowing through the village, are a nuisance. Board of Health v. Casey, 18 St. Rep. 251 ; s. c. 3 N. Y. Supp. 399. The ^ erection and maintenance of an ice-house within two inches of a brick dwelling-house and store of plaintiff in such a way that the ice injured the walls of plaintiff's house and rendered it uncomfort- able and reduced its rental and market value was held to be a nuisance. It is no excuse that plaintiff's business is lawful and carried on with all possible care. Carrick v. Shi ffcr decker, 48 Hun, 3SS- In an action to restrain defendant from so conducting the busi- ness of manufacturing sash, blinds and boxes on the adjoining premises so as to allow the steam, smoke, soot and cinders and partly burned shavings therefrom to come upon and into plain- il NUISANCE. 539 Art. 3. Who Can Maintain the Action. tiff's premises to her annoyance and damage, in which it appeared that plaintiff's house was at times enveloped in smoke, and that dust and soot proceeding from defendant's wares were deposited on the windows and the rooms of the plaintiff's house and upon clothing when hung in the yard to dry, it was held to be a nui- sance. Beir v. Cooke, 37 Hun, 381. It was held in Cogswell v. N. Y. etc. R. R. Co. 103 N. Y. 10, reversing 48 Supr. Ct. 31, that the power given by an act of the Legislature to a railroad company to run its cars over the tracks of another company to a terminus in the city of New York, even if such company has been authorized to acquire lands and con- struct an engine house in a proper place near such terminus, did not so sanction or authorize the erection of such house where it constituted a palpable private nuisance to an adjoining owner, so as to deprive him of any remedy for damages resulting therefrom. In an action brought to recover damages to plaintiff from de- preciation in the value of her property caused by the manufacture of gas in close proximity thereto by defendant, and restrain the defendant from continuing the nuisance, the last case was fol- lowed. Bohan v. Port Jcrvis Gaslight Co. 45 Hun, 257, afifirmed, 122 N. Y. 18. One entitled to the use of air and water in its natural condition, if injured by its pollution, may maintain an action against the person causing such pollution, whether an in- dividual or a corporation. Chapman v. City of Rochester, 1 10 N. Y. 273. If plaintiffs establish, in an action to restrain a nuisance, that poles erected in the street by a duly organized telegraph com- pany, incommode the public use of the street in an unnecessary and unreasonable manner, not warranted by law, plaintiffs will be entitled to recover at least nominal damages. People v. Metro- politan Telephone Co. 1 1 Abb. N. C. 304. The occupant of prop- erty adjoining upon both sides of a railroad, who erected a bridge across the railroad so low as to interfere with the brakeman in the performance of his duty, is liable to an action by the latter for the nuisance. Whoever continues a nuisance is responsible for the injury caused thereby. Dukes v. Eastern Distilling Co. 51 Hun, 605 ; S. C. 4 N. Y. Supp. 562, 22 St. Rep. 833. Where a barn was built by the defendants upon premises ad- joining the plaintiff's residence and used as a livery stable, so that the use of plaintiff's residence was rendered uncomfortable 540 NUISANCE. Art. 3. Who Can Maintain the Action. and unwholesome, it was held that the keeping of said stable was a nuisance. Robinsojt v. Smith, 25 St. Rep. 647. But the erection and use of a building for the stabling of horses or even the busi- ness of a livery stable, is not in and of itself a nuisance. Stillwell V. Buffalo Riding Academy, 21 Abb. N. C. 472. The unlawful management and operation of a railroad which causes damages to adjoining premises is a nuisance. Avery v. N. Y. Central & H. R. R. R. Co. 26 St. Rep. 279 ; s. c. 7 N. Y. Supp. 341. Where it is a case of a glaring public nuisance, proof of slight special injury is sufficient to give plaintiff standing in court for redress. Flynn v. Taylor, 26 St. Rep. 649. Where a nuisance existed adjoining property of plaintiffs, con- sisting of vacant lots, while the fact that the property was not occupied made the measurement of damages more difficult, it would not impair their right to maintain an action to abate the nuisance. Busch v. Lackawanna, etc., R. R. Co. 34 St. Rep. 7 ; Ruchnan v. Green, 9 Hun, 226. A dam at a point where a river is incapable of navigation so that the common right of the public is in no way impaired thereby is not a nuisance. Matter of City Reservation at Niagara, 37 Hun, 537. An open area eight feet deep at the rear of a store protected on three sides by the walls of adjoining buildings and separated from the alley on which it faced by a stone coping two feet wide and seven inches high, was held not to be a structure so dangerous as to be a nuisance. Bond v. Smith, 113 N. Y. 378, reversing 44 Hun, 219. Where plaintiff connects his own premises with the private sewer from adjoining premises with the consent of the owner and he is damaged by the discharge of refuse upon his premises, as a result of the use of the sewer, he has no cause of action against the owner. Kosmakv. Mayor, 53 Hun, 329; S. C. 6 N.Y. Supp. 453. A scaffold suspended from the roof of a hotel for the purpose of making necessary repairs, where the hotel was separated from the sidewalk by an area of fifteen feet, was held not to be a nui- sance. Hexamer v. Webb, loi N. Y, 377. An owner's tempo- rary removal of the sidewalk in front of his premises in order to enable him to cart in material used in the construction of build- ings does not constitute a nuisance. Ster v. Tuety, 45 Hun, 49. It was held to the extent to which telephone poles were neces- sary and reasonably sufficient and adapted to the fixtures and NUISANCE. 541 Art. 3. Who Can Maintain the Action. lines of the company, they were not a nuisance or an unlawful obstruction, though they would be wherever that extent was exceeded. People v. Metropolitan Telephone Co. 31 How. 596. Where defendant was engaged in supplying a gas-light com- pany with naphtha by pumping it through pipes under the streets of the city, the pipe being in good order and no evidence of leakage therefrom, it was held it did not constitute a nuisance. Lee v. Vacuum Oil Co. 7 N. Y. Supp. 426. Where an excavation under a sidewalk is made by the owners of the premises and covered with flag-stones with the consent of the authorities, the owner is not guilty of maintaining a nuisance so long as the space is securely covered. Babbagc v. Powers, 7 Supp. 306. A trades- man may convey goods from the street to his store and for that purpose may temporarily obstruct the passage on the side- walks, but such obstruction must be reasonable with reference to the rights of the public. Where an action was brought by plaintiffs who were engaged in the same business and occupied an adjoining store, setting out such facts, it is held there were suffi- cient averments of special damage to maintain the action. Cal- lanan v. Gilinan, 107 N. Y. 361 ; Flynn v. Taylor, 127 N. Y. 598. Where it was alleged that defendant, without authority, entered on the public avenue and erected a railroad station, and that such station was an unlawful appropriation of plaintiff's property, judg- ment was granted directing a removal of the station. Porth v. Manhattan R. R. Co. 11 N. Y. Supp. 633. The construction of a bridge over the waters of the shores of a bay, if an unlawful obstruction to navigation, may be redressed by proper proceedings on behalf of the public ; but a private per- son who has not suffered any special injury has no standing to maintain such an action. Roe v. Strong, 107 N. Y. 350. Where a complaint against the erection of a frame house in a city con- tained no averment of special damages, it was held a mere viola- tion of the city ordinance did not give plaintiff a right of action. Young V. ScJicu, 30 St. Rep. 608. A public nuisance does not create a private cause of action unless a private right exists and is specially injured by it. Abendroth v. Metropolitan Ry. Co. 122 N. Y. 17. A private person cannot maintain an action to restrain the erection of a nuisance near the waters of a navigable stream. The people only can maintain an action to restrain a nuisance 542 NUISANCE. Art. 4. Defendants and Defences. by way of dike on lands under water. This is an injury if a nui- sance to the common right of the pubHc to navigate the waters. Knickerbocker Ice Co. v. ScJiultz, 116 N. Y. 382. The fact that a person has to pass over a highway more frequently than others does not establish such special damages as will authorize a private action for its abatement as a nuisance. Wakeman v. Wilbur, 4 Supp. 938; S. C. 21 St. Rep. 556. An action may be maintained by the people for the removal of a nuisance and for damages. People v. Metropolitan, etc. Telegraph Co. ii Abb. N. C. 304, 64 How. 120. Where the complaint alleged that the running of de- fendant's trains on the public street in front of plaintiff's house caused vibration of the ground and jarred plaintiff's house so that the walls were cracked, the trains were run at short intervals, mak- ing much noise and emitting smoke and gas obnoxious and offen- sive to plaintiff, that the operation of the trains caused plaintiff intense mental anxiety and distress, shows sufficient special injury to enable plaintiff to maintain the action where the demurrer ad- mits the wrongful occupation of the street. Wilcken v. West Brooklyn R. R. Co. i Supp. 791. And where defendant digs a ditch on its land in which the water becomes stagnant and offen- sive, plaintiff owning abutting land may maintain an action for the injury caused thereby though there is no house on the land occu- pied either by himself or another. Biisch v. N. Y. etc. Co. 12 N. Y. Supp. 8s. A complaint which alleges that defendant's structure is a per- manent unlawful nuisance and prays for a permanent injunction, and that the damage may be ascertained and adjusted, does not improperly unite two causes of action. O' Sullivan v. New York Elevated R. R. Co. 7 Supp. 51. (This, like very many of the case cited, was an action in equity and asks for equitable relief.) ARTICLE IV. Defendants and Defences. § 1661. § 166 Defendants therein. A person by whom the nuisance has been erected, and a person to whom the real property has been transferred, may be joined as defendants in such an action. The lessee of a store may join his lessor as plaintiff in an action to restrain as a nuisance a show case placed on the sidewalk by NUISANCE. 543 Art. 4. Defendants and Defences. his neighbor so as to exclude the light from his windows. Hal- lock v. Scheyer, 33 Hun, in. An action will lie against an ele- vated railroad which has erected a structure, although it has leased it to another company, which is operating it at the time the action is brought. Pond v. Metropolitan Elevated R. R. Co. 42 Hun, 567. The owner of premises, although not in pos- session, is liable for the maintenance of a nuisance thereon where he receives rent with knowledge thereof. Board of Health of Neiv Rochelle v. Valentine, 32 St. Rep. 919. See, however, Bab- bage V. Powers, 26 St. Rep. 799, The tenant of the ground floor of a store who has the benefit of the wooden awning over the sidewalk without license from the city, is liable for an injury done by its fall. Me Part land v. Thomas, 4.^. Y. Supp. 100. Where one employs a contractor to do work not in its nature a nuisance, but which, when completed, is so by reason of the man- ner in which the contractor has performed the work, if he accepts the work in that condition, he becomes responsible for the crea- tion of a nuisance. Vogel v. M.ayor, 92 N. Y. 10. The persons who erected the nuisance and the owner of the realty may be joined as defendants. Robinson v. Smith, 7 Supp. 38. It is not necessary to allege that the person maintaining the nuisance is a tenant of the freehold on which it is maintained. Horton v. Brozvnsey, 10 St. Rep. 800. One to whom a railroad cannot be specially injurious, cannot maintain an action. Davis v. Mayor, 14 N. Y. 506. Persons who, by their several acts or omissions, maintain a common nuisance, are jointly and severally liable for such damages as are the direct, immediate and probable conse- quences of it. Simmons v. Everson, 124 N. Y. 319, distinguish- ing Chipman v. Palmer, yy N. Y. 51. See Timlin v. Standard Oil Co. 126 N. Y. 514, as to liability of tenant who sublets premises. The owners of a pier who became such during the running of a valid outstanding lease are not responsible for a nuisance created thereon, during the existence of a precedent estate where they have had no notice thereof. The owner is responsible if he creates a nuisance and maintains it or if it was created by a prior owner or a stranger, and he knowingly maintains it, or if he de- mises premises to be used as a nuisance, but an owner who has demised premises for a term during which they became ruinous and thus a nuisance, is not responsible for the nuisance unless h.e 544 NUISANCE. Art. 4. Defendants and Defences. has covenanted to repair. Before a grantee or devisee of prop- erty, upon which there is an existing nuisance, can be held for damages, he must have notice of the nuisance and a reasonable time to abate it. Ahern\. Steele, 115 N. Y. 203. The same rule was held in the case of an overhanging gutter discharging water on adjoining land in Haggerty v. Thomson^ 45 Hun, 398. See, also, for the same principle, Wolf v. Kilpatrick, loi N. Y. 146, In an action to enjoin a nuisance both the lessor and lessee of the structure constituting a nuisance are necessary parties. O' Sullivan v. N. V. Elevated R. R. Co. y N. Y. Supp. 51. The owner of premises who had knowledge of the purpose for which a barn adjudged a nuisance was erected by his tenant and he con- sented thereto is a proper defendant. Robinson v. Ellsworth, 25 St. Rep. 647. An action may be prosecuted against any tenant for life or years and the assignee of either, and also against co- tenants and guardians, but the plaintiff must be a person seized of some estate of reversion or remainder. Purton v. Watson, 19 St. Rep. 6. Where an owner places a coal vault under the sidewalk, with an opening constructed safely and properly and rents the premi- ses to a tenant who takes the entire possession and occupation, the landlord reserving no control, and the tenant carelessly leaves the coal hole open, whereby some one is injured, the tenant, not the landlord, is liable. Where, however, the building is rented in flats or apartments and the owner remains in control to some extent, employs a janitor to take care of the premises, who in the discharge of his duty as such, controls the coal vault and the opening in the sidewalk thereto, and through his negligence in leaving the opening unguarded, an injury occurs, the owner is liable and this although the coal for the occupants of the premises is received through the coal hole. Jennings v. Van Schaick, 108 N. Y. 530. This case is also reported in 20 Abb. N. C. 324, and is accompanied by a full note on liability for condition of apart- ment houses. Persons in possession of premises either as trustees or tenants are liable for damages caused by such premises being out of repair. Murray v. Archer, 5 Supp. 326. In an equitable action to enjoin the keeping of bees on adjoining premises as a nuisance, the owner of the fee of such premises is not a necessary party. Olm- stead v. Rich, 6 Supp. 826. NUISANCE. 545 Art. 4. Defendants and Defences. Where a person acquires title to land upon which there is an existing nuisance, the mere omission to abate or remove it does not render him liable to an action ; there must be something amounting to an actual use, or a request to abate it must be shown. Wenzlick v. McCottcr, 87 N. Y. 122. It is said in the latter case that Brown v. Cayuga, etc., R. R. Co. 12 N. Y. 486; Wasmcr v. D., L. &■ IV. R. R. Co. 80 N. Y. 212 ; Irvine v. Wood, 51 N. Y. 224; Clifford V. Dam, 81 N. Y. 56, and Walsh v. Mead, 8 Hun, 387, hold the same doctrine. All these cases seem to have arisen before the enactment of the present section, but under a statute substantially like it. 2 R. S. (Edm. ed.) 342, § 2. Where a nuisance was created by defendant's grantor, a prior notice to him of its existence must be shown, and he is only liable for subsequently accruing damages. Miller v. Church, 5 Hun, 342. See Moore v. Gadsen,(^}^ N. Y. 12. He who maintains a nuisance knowingly is just as responsible as he who created it. Mosierv. U. & S. R. R. Co. 8 Barb. 427 ; Brotvn v. Cayuga, etc. R. R. Co. 12 N. Y. 486, supra; Wasmer v. D., L. & W. R. R. Co. 80 N. Y. 212, supra. Where the nuisance existed at the time of the demise the lessee will be liable separately or jointly with the lessor for the resulting injuries. See 87 N. Y. 122, supra ; Irvine v. Wood, 51 N. Y. 224. In order to charge one who has created a nuisance with liability for its continuance after he has parted with the property upon which it was situated or caused, he must be shown to have derived some benefit from its continuance, or to have sold with warranty of the continued use of the property as enjoyed while the nuisance existed. Hanse v. Cowing, i Lans. 288 ; Stvords v. Edgar, 59 N. Y. 28. In an action for damages to plaintiff's premises by water from defendant's roof pouring water thereon, it appeared that the gut- ter and conductor had been in same position for eighteen years, and that defendant bought the premises in 1878. Defendant tes- tified he bought with no knowledge that the gutter cast water on plaintiff. Held, that, without proof of notice, the action could not be maintained. Haggerty v. Thonipson, 45 Hun, 399. The grantee of premises on which there is an existing nuisance is not made liable for damages by a notice given to a prior owner, but is only liable for those accruing after notice to him. Haggerty v. Thompson, 10 St. Rep. 137; s. P. Bondv. Smith, 7 St. Rep. 829. If different parties independently pollute a stream, each discharging [Special Actions — 35.] 546 NUISANCE. Art. 4. Defendants and Defences. from his own premises sewage therein, one of the several wrong- doers will not be liable for all the damages occasioned by the nui- sance thus created, but each is liable to the extent only of the wrong committed by him. Wallace v. Drew, 59 Barb. 413; Chipnian v. Palmer, yy N. Y. 51. Every person who assists in the erection of a structure with intent that it shall be put to an illegal use, or who aids in the continuance of it, is guilty of a nuisance, and liable for damages thereby occasioned. CJienango Bridge Co. V. Lewis, 6^ Barb. in. A party is liable for a nui- sance which he has directed to be placed in a public highway by a contractor. Jones v. CJiaiitry, i Hun, 613. One who lets his land for a lawful business is not answerable unless he knew or had reason to believe it would be a private nuisance. Fish v. Dodge, 4 Den. 31 1 ; Pickard v. Collins, 23 Barb. 444. A person is not liable for a lawful act done on his own land which infringes no rights of an6ther, simply because he was influenced to do it by wrong and malicious motives. Phelps v. Nowlen, 72 N. Y. 39. No duty rests upon a property owner whose title does not run to the center of the street, to remove a nuisance which he did not create, although it stands on the sidewalk nearest his premi- ses. English V. Brejman, 60 N, Y. 609. Building a house in such a way and of such poor material that it falls and injures the adjoining property constitutes, under the rule laid down in Heeg V. Lieht, 80 N. Y. 569, a private nuisance, and renders all parties concerned — the owner, the architect and the builder — jointly liable in damages. Jarvis v. Baxter^ 52 Supr. Ct. 19. The rule that a landlord out of possession is not liable for an after-accruing nuisance, unless in some manner he is in fault for its creation or continuance, applied, holding that he was not liable for injuries sustained by reason of the breaking of a stone supporting a coal hole cover by the act of a third person, of which he had no knowl- edge. Wolfv. Kilpatrick, loi N. Y. 146. It is not a nuisance to blast at night, as is usual in mines, because it disturbs the sleep and affects the health of adjoining owners. Marvin v. Brewster Trojt Co. 55 N. Y. 538. A dog is not a nuisance /^r se. People V. Board of Police, 15 Abb. 167. But a ferocious dog, accustomed to bite mankind, is a common nuisance. Brown v. Hoburger, 52 Barb. 15 When a municipal corporation has power to remove a nuisance, NUISANCE. 547 Art. 4. Defendants and Defences. it is liable for injuries resulting from failure to keep its streets, lanes and walks free from nuisances. Sweet v. Glovcrsville, 12 Hun, 302. Nor has a municipal corporation a right to maintain a nuisance more than an individual, and an action may be main- tained against it in case it does so. Donolmc v. Mayor, 3 Daly, 65. But a stepping-stone on the sidewalk near the curb is not such an obstruction as a municipality is liable for. DiiBois v. City of Kingston, 102 N. Y. 219. One owning premises as trustee is liable in damages for a nuisance created by a discharge of water from a leaking leader upon the plaintiff's adjoining premises, although the leader was erected by a former owner and defendant was ignorant of the defect. ScJnvab v. Cleveland, 28 Hun, 458. See 45 Hun, 399, supra. A city ordinance required the removal of snow and ice within a specified time ; plaintiff fell on the ice in front of defendant's lots, and was injured ; it did not appear that the grade of the lot and the arrangement of the conductor pipe was made by defendant, or after he became the owner of the lot, or that it was not done in the usual or proper manner. Held, that if there was a nuisance it was apparently caused by the omis- sion of the city to have the accumulated snow and ice removed, and that defendant was not responsible to plaintiff, nor did the failure to remove the ice make him so. Moore v. Gadsden, 93 N. Y. 12. Where defendant did not construct the work that be came a nuisance and did not contrive it in any legal sense, no liability attaches to him. Woran v. Noble, i St. Rep. 499. A landowner's payment of an assessment for the construction of a sewer cannot be deemed an assent by him to the unlawful dis- charge of the sewage upon his land, nor will it affect his right of action therefor as a nuisance. No user will legalize a nuisance. Van Rensselaer v. City of Albany, 15 Abb. N. C. 457. In an action for wrongful discharge of tan bark in plaintiff's pond, which was on the same stream and below the tannery, it was held to be no defence that plaintiff might have prevented the pond from filling up by opening a waste gate. West v. Kiersted, 1 5 Week. Dig. 549. It is not a defence to a party sued separately for a nuisance, that other parties are committing the same nuisance or contribut- ing thereto. Chipnian v. Palmer., yy N. Y. 56; People v. Mallery, 4 T. & C. 567. The fact that others contributed to the nuisance is no defence to maintaining it. Board of Health of City of Yon- kers V, Copciitt, 71 Hun, 149, 54 St. Rep. 311, 24 Supp. 625. 548 NUISANCE. Art. 5. Pleadings and Practice. ARTICLE V. Pleadings and Practice. Sub. I. Pleadings. 2. Practice. Sub. I. Pleadings. A mere allegation in a complaint that a trespass upon real estate is unauthorized and is a nuisance, with a demand that the con- tinuance of such trespass be enjoined, does not make the action one for a nuisance so as to make it triable by a jury. Johnston V. Manhattan R. R. Co. 41 St. Rep. 682. While the title of a defendant to the property need not be alleged, enousfh must be stated to show that he is liable for the existence of the nuisance. Chipman v. Palmer, JJ N. Y. 51. In actions for private nuisance all the damages which naturally and probably result may be recovered, whether specially alleged or not. Panton N.Holland, 17 Johns. 92; Lasala v. Holbrook, 4 Paige, 169. The action is a substitute for the writ of nuisance, and plaintiff must aver in his complaint all that was before necessary to sustain an action of that nature. Ellsworth v. Putnam, 16 Barb. 565 ; Hub- bard v. Russell, 24 Barb. 404. In order to maintain the action it is necessary to show that the defendant, if not the original creator, had knowledge of the existence of the nuisance ; Hubbard v. Russell, 24 Barb. \OA„ stipra ; Miller v. CJmreh, 5 Hun, 342; Conhocton Stone Roadv. Buffalo, etc. R. R. Co. 51 N. Y. 573; but it is not neces- sary to prove a request to abate it. Brozun v. Cayuga, etc., R. R. Co. 12 N. Y. 486. But see Wenzlick v. MeCotter, 87 N. Y. 122. In an action for injury to plaintiff's land by an erec- tion on land in possession of defendants, the complaint should aver that plaintiff was the owner of the freehold affected by the nuisance when acts were committed, and that defendants were tenants of the freehold on which the nuisance is erected. Ells- morth V. Putnam, 16 Barb. 565. Where the question is one of general interest, or the parties numerous, one may sue for all. Astor V. N. Y. Arcade R. R. Co. 3 St. Rep. 188; Wetmore v. Story. 22 Barb. 414; Hess v. B. & N. F. R. R. Co. 29 Barb. 391 ; Hutchins v. Smith, 63 Barb. 251. In an action to recover damages for the alleged maintaining of a livery stable in such a manner as to render it a nuisance, held, NUISANCE. 549 Art. 5. Pleadings and Practice. that it was unnecessary to allege that the person maintaining the nuisance was a tenant of a freehold interest in the land upon which it was maintained ; an allegation that the person acted with consent of the owner is sufificient. Horton v. Brownscy, 10 St. Rep. 800. As to what averments are necessar}' in an action by an adjoining owner against one who obstructs a sidewalk by his method of conducting business, see Callanan v. Gilman, 107 N. Y. 360. See same case as to averments of special damage. The provisions of 2 R. S. 602, § 66, providing that where a con- struction has been put upon a statute by the Supreme Court, every act done in good faith in conformity with such decision and before reversal, shall be so far valid as to excuse from liability for a penalty or forfeiture, do not apply to an action consequent upon the erection and maintenance of a nuisance. Ciienarigo Bridge Co. v. Paige, 83 N. Y. 178. A declaration in an action of nuisance for obstructing the plain- tiff's right of way must aver that the obstruction was erected on the way. In an action for nuisance, it is sufificient to show that the property has been rendered less valuable for the purposes to which the owner has seen fit to devote it. First Baptist Church V. Schenectady & Troy R. R. Co. 5 Barb. 79. See 6 Barb. 613. The allegation in a complaint, in an action iot damages by reason of defendant's not keeping his privies and drains in repair, that the use of plaintiff's cellars and the letting thereof were prevented by the unlawful act of the defendant, is sufficient to authorize the admission of evidence of the rental value to show the damage done, without alleging special damage. jfutte v. Hughes, 67 N. Y. 267. A complaint states a cause of action where it alleges that a municipal corporation — the defendant — constructed a drain to plaintiff's lot, upon which it discharged its contents, rendering his house unhealthful and injuring it. Any excuse or justification is an affirmative defence and must be pleaded and proved. Bradt v. City of Albany, 5 Hun, 591. The complaint of an owner abutting the street, who has an easement and not a fee in the street, against a street railway company for laying its track so near the sidewalk as not to leave a space sufficient for vehicles to stand, thereby incommoding him and his family, and depreciating the rental value of his premises, does not state facts sufficient to constitute a cause of action. Kellinger v. Forty -second St. etc. R. R. Co. 50 N. Y. 206. 550 NUISANCE. Art. 5. Pleadings and Practice. Defendant's works discharged an offensive substance upon plaintiff's lots. Held, that plaintiff was not bound, at the risk of losing her right of action, to avail herself of all possible measures for the purpose of carrying it away. Rose v. N. V. Gaslight Co. 8 Week. Dig. 468. In an action to recover damages for injuries caused by flooding the cellar of the plaintiff, through excavations in the public street made by defendant, Jield, not a defence that the water got into the premises of plaintiff through holes or openings in the wall of the cellar, the plaintiff being under no obligation to make the wall impervious to water that might be wrongfully thrown on his premises. Mairs V. Manhattan Real Estate Assn. 89 N. Y. 498, afifirming 15 J. & S. 31 ; citing St. Peter v. Dennison, 58 N. Y. 416. In an action for wrongfully discharging refuse tan bark into plaintiff's pond, which was on the same stream and below the tannery, held, that it was no defence that plaintiff might have prevented the pond from filling up by removing the slash boards on his dam, or by opening a waste gate. West v. Kiersted, 15 Week. Dig. 549. A land owner cannot recover damage against a village caused by sewage which enters upon his lot from an old sewer in one of the streets, through a sewer or pipe built on his own land, with his knowledge and consent, if not at his request. Searing v. Village of Saratoga Springs, 39 Hun, 307; citing Matter of Rhine lander, 68 N. Y. 105. Where a city, by the exercise of its power, has created a private nuisance on plaintiff's premises, it incurs the duty of adopting such means as shall abate the nuisance ; and having the power to perform it, its omission to do so renders it liable. Seifert v. City of Brooklyn., loi N. Y. 136. The liability of a municipal corpo- ration for a nuisance is the same as that of an individual. Chap- man V. City of Rochester, 23 Week. Dig. 424. To maintain an action it is not necessary that all the injury should be the result of the nuisance sought to be charged ; if it is the principal agent and would alone produce the result, it is sufficient at least as evi- dence of plaintiff's right of action. Mulligan v. Elias, 12 Abb. 259; McKeon v. See, 51 N. Y. 300. The owner of premi.ses who has demised them is regarded as | j upholding a nuisance by receiving rent therefor; so when he conveys with warranty, but not by quitclaim deed. Hanse v. Cowing, I Lans. 288; Irvine v. Wood, 51 N. Y. 224; Blunt v. I i NUISANCE. 551 Art. 5. Pleadings and Practice. Aiken, 18 Wend. 522; Waggoner v. Jermain^ 3 Den. 306. Every continuance of a nuisance i.s, in judgment of law, a fresh nui- sance — Vedder v. Vedder, i Den. 257; Beckivitk v. Griswold, 29 Barb. 291 — and successive actions will lie. Phillips \. Terry, 3 Keyes, 313. An action lies for the nuisance affecting vacant lands to the detriment of their value. Buckman v. Green, 9 Hun, 225. The fact that plaintiff for one or two winters took ice from a dam built by defendant, the waters of which became stag- nant and a nuisance, does not constitute such an acquiescence in the continuance of the dam as to estop her from claiming that it was a nuisance, especially after its effects were more clearly dis- covered. Adams v. Popham, y6 N. Y. 410. Precedent for Complaint. SUPREME COURT — Ulster County. PATRICK FURLONG agst. WILLIAM H. TOWNSEND. The complaint of the above-named plaintiff respectfully shows to this court: That he now is and for many years has been the owner and in the occupancy of the following described premises, to wit: (Here insert description.) That the defendant has for many years occupied the lot adjoining the plaintiff's premises on the north and has constructed a drain or sewer from the house so occupied by him, which discharges on plaintiff's premises; that the sewage thus dis- charged from defendant's house through such sewer emits foul and offensive odors and injuriously affects the health of this plain- tiff and his family; that this plaintiff has caused a request of the de- fendant to be made that he disuse said sewer and that he discharge the sewage from his house elsewhere, but that the defendant, dis- regarding said request, continues to discharge the foul and offensive accumulations of his house on the plaintiff's' lands; that by reason of the premises this plaintiff has sustained large damages, and his own residence has been made an unfit and unwholesome dwelling place for himself and his family and so continues to be. Wherefore, this plaintiff prays judgment that the defendant be compelled to remove said sewer and to discharge the sewage from his house elsewhere and where it will not be a nuisance to this plaintiff and his family, and that this plaintiff may also have judgment for his damages so by hirn sustained as aforesaid, with costs, and for such further or other relief as this court may deem proper and just. CHAS. A. & E. FOWLER, Plaintiff's Attorneys. 552 NUISANCE. Art. 5. Pleadings and Practice. Complaint Asking Injunction. SUPREME COURT — Orange County. MARGARET BOHAN, " y 122 N. Y. 18. THE PORT JERVIS GAS LIGHT COM- PANY. The plaintiff, by this her complaint in the above-entitled action, alleges: 1. That at the time and times hereinafter set forth, the defendant was and still is a domestic corporation duly created and incorporated as such under and pursuant to the Laws of the State of New York residing and transacting business as such at Port Jervis, Orange county, N. Y. 2. That at the time and times hereinafter set forth the plaintiff was and still is the owner of the freehold situated on the east side of Brown street, in the village of Port Jervis, Orange county, N. Y., known and designated on the map of said village as Lot No. 162, which said premises were at the time and times hereinafter set forth and still are used and occupied by the plaintiff as a dwelling. 3. Upon information and belief that at the time and times herein- after set forth the defendant was and still is tenant of the freehold situated on said Brown street in said village of Port Jervis, adjoining the said described premises of the plaintiff upon which the defendant has for several years past and still does manufacture gas and for such purposes has erected and maintained and still maintains upon its said described premises in close proximity to said described premises of the plaintiff, a gas house, tanks and all appurtenances thereto for the manufacture of said gas. 4. That about the year 1880 the defendant erected a new tank for the purposes of its said gas works upon its said premises, the south- ern side or end of which was placed and now stands within a few feet of plaintiff's said premises. 5. That about the year 1880, the defendant began and ever since has and still does manufacture its said gas at its said works from a certain kind of oil called naphtha^ and that said tank erected near plaintiff's said premises as aforesaid was and is used to store and contain said naphtha for the purposes aforesaid. 6. That said naphtha is a penetrating, offensive, noxious, unhealthy and sickening mineral substance and destructive to the health and comfort of those required to be and remain in close proximity to it. 7. That said tank was erected and is maintained in a negligent and unskillful manner and by reason of the negligence and want of care upon the part of the defendant in the construction, use of and maintenance of said tank, and its said works, the odor, injury and damage hereinafter set forth resulted to the plaintiff and her said NUISANCE. 553 Art. 5. Pleadings and Practice. property, and also by reason of the erection and use of said tank and said works of the defendant as aforesaid and the negligent and un- skillful manufacture of gas from naphtha as aforesaid the defendant has, during the time and times aforesaid, to wit: since about August ist, 1880, and still does maintain a nuisance especially injurious to the comfort and enjoyment of the plaintiff and her family and also especially injurious to the rental value of said premises of the plain- tiff, as by reason thereof the plaintiff and her said family have since said time and still do suffer great annoyance, discomfort and ill- health from the offensive, noxious, unhealthy and sickening odor of said naphtha and also by reason thereof the plaintiff has since said time and still does suffer loss and damage to her said property as the same has not during the said time and has no rental value whatever, and is by reason of said nuisance rendered useless and valueless to the damage of the plaintiff of the sum of $3,000. Wherefore, the plaintiff demands: 1. Judgment against the defendant for the said sum of $3,000 with costs. 2. That the defendant be enjoined from continuing its said nui- sance and damage to the property and comfort of the plaintiff. 3. That the plaintiff have such other and further order or relief or both as shall be just, equitable and proper to be granted herein. T. J. & J. W. LYON, Attorneys for Plaintiff. Complaint. SUPREME COURT — Delaware County. ABIJAH WAKEMAN SYLVIA WILBUR and JACOB WILBUR. - 147 N. Y. 664. The complaint of the above named plaintiff respectfully shows that the plaintiff' before and at the time of the committing of the grievances hereinafter mentioned, was and from thence hitherto has been and still is lawfully seized of an estate in fee simple in and to a farm situate in the town of Walton in said county of Delaware, being a part of lot 174, Rapelyea's Patent, consisting of 200 acres of land more or less; that during the time above mentioned and for more than thirty years prior thereto has been and now is in actual pos- session of said property carrying on the business of farming and lumbering. That there is and for more than thirtv vears prior to the com- mencement of this action has been a public highway leading from the plaintiff's farm to the village of Walton, which has been during that time assessed in all respects as a public highway and to the time of the commission of the wrongful acts hereinafter alleged, traveled by this plaintiff freely and at all times and by him used in drawing wood, 554 NUISANCE. Art. 5. Pleadings and Practice. lumber, logs, hay and other produce to market, it being the only- direct road to the village of Walton and the railroad. That the defendants are in possession of a farm lying between the said lands of the plaintiff and the said village of Walton, through which the said highway passes; and that for more than thirty years prior to the said wrongful acts the lands adjoining the said highway through the said farm of the defendants for a rod and a half on each side thereof were uninclosed and were dedicated by the grantor of the defendants to public use. That on or about the ist day of April, 1882, and at other times thereafter and while the plaintiff was entitled to a free and uninter- rupted use of said road, the defendants, well knowing the premises and with intent to hinder and delay and injure this plaintiff and to prevent him from traveling on or along the said highway or using it in drawing wood, lumber and other material to market as he law- fully might, wrongfully put up or caused to be put up and erected a certain fence in the said highway opposite to their said lands and has kept and continued the same, thereby obstructed the said high- way and pervented the free and uninterrupted use of the same, and that said fence during the winter season causes the snow to drift and fill the said road and renders it at all times unsafe and a portion of the time absolutely impassable. That by reason of said obstructions, said plaintiff has not only been greatly inconvenienced and annoyed but has been hindered and prevented from using and traveling the said road as during all the time he otherwise would and of right ought to have privilege of doing, and has been deprived of the profits, benefits and advantages that he might have made and received by using and traveling the same, and has been obliged to spend much time, to wit, at least thirty days, in shoveling the snow and making roads around said obstructions and has been thereby hindered and delayed and obliged to spend large sums of money in drawing logs, wood and lumber and other material around said obstructions, and was actually prevented from drawing large quantities of wood and lumber, to wit, about 100 cords of wood and 30,000 feet of lumber, and delivering the same to cus- tomers and parties in the village of Walton, whereby he lost the op- portunity of selling and it greatly deteriorated upon his hands. And plaintiff further alleges that on several occasions Vv^hen lawfully driving along said road, his load was, without fault or negli- gence on his part, overturned by the said fence, his sleigh and harness broken and his team injured, and said plaintiff has been otherwise greatly damaged by the building and maintaining of the said obstructions amounting in the aggregate to the sum of $200. And plaintiff further alleges that he now has 200 cords of wood and 300,000 feet of lumber to draw from his farm and dehver to cus- tomers and parties in the village of Walton; that if the defendants are permitted to keep up and continue the said fence said plaintiff will be obliged to draw 'the same around said obstruction and by a circuitous and inconvenient way and at a great and additional expense. Plaintiff further alleges that on or about the 15th day of Decern- NUISANCE. 555 Art. 5. Pleadings and Practice. ber, 1885, he was obliged, in order to pass, to take down and remove a. portion of said fence as he lawfully might; that the defendants immediately thereafter rebuilt said fence in the said highway and so as to obstruct the same and to hinder and prevent its use by this plaintiff, and threatened the plaintiff if he again interfered with said obstruction, and has prevented the plaintiff from removing the same. That prior to this action, said plaintiff demanded that they remove said fence, which the defendants refused to do, claiming they had the right to build the said fence and threatened to continue the same. Wherefore, plaintiff demands judgment that the said fence be removed and said defendants required to restore said road to its former condition and as it was used for more than twenty years before the erection of said fence, and that the defendants and each of them be perpetually enjoined from obstructing the said highway or interfering with the plaintiff's rights therein, and that the plaintiff recover of the defendants the sum of $200 damages sustained by the plaintiff on account of said obstruction, and the costs of this action. FANCHER & SEWALL, Plaintiff's Attorneys, Complaint Asking Injunction. SUPERIOR COURT OF THE CITY OF NEW YORK. LAWRENCE J. CALLANAN and JAMES A. KEMP agst. GEORGE F. OILMAN. 107 N. Y. 360. The complaint of the plaintiffs respectfully shows: That the plaintiffs are copartners doing business as such under the firm name of Callanan & Kemp, at the store now known by the number 41 Vesey street, in the city of New York, which said store, beginning about 125 feet west of Church street, has a frontage on the south side of Vesey street of thirty-two feet and six inches, and extends in depth eighty-one feet, being half the distance between Vesey and Fulton streets, and is five stories in height, and was built during the year 1882, expressly for the plaintiffs and expressly adapted to and for the accommodation of their business by Mr. Cal- lanan, one of the plaintiffs, who is the owner of said premises, and has leased the same to the plaintiffs, for the purpose of transacting their business for a term ending May ist, 1884, with the privilege of renewal. That for about forty years prior to the erection of said store build- ing, the plaintiffs and their predecessors in business have carried on at the same stand, but in a building of somewhat less capacity, a wholesale and retail grocery business, in which they invested large capital, and which business they still continue at the said new build- ing, and said plaintiffs and their said store and business were, during 556 NUISANCE. Art. 5. Pleadings and Practice. said period, and now are well known in the city of New York and elsewhere, and said plaintiffs had and still have numerous patrons and customers, by far the large portion of whom have been accus- tomed to come, and still come, to said store along the southerly side- walk of Vesey street from the direction of Church street and Broad- way, and return in the same way. That during a 1 the time of plaintiffs' occupation of said store and premises until the acts herein complained of, plaintiffs and their employes, patrons and customers have enjoyed free and uninter- rupted use of said passage along the sidewalks of Vesey street, which, from before the occupation by these plaintiffs of said premises, was and still is a public street of the city of New York, almost wholly devoted to business, upon and along the sidewalks of which these plaintiffs and their employes and patrons and all persons com- plained of could freely and uninterruptedly pass and re-pass without hindrance or obstruction by any one. That by reason of the premises, said store and the lease thereof to the plaintiffs was and, but for the acts of the defendant herein com- plained of, still is of great value to the plaintiffs. That defendant, well knowing the premises, and with intent to injure the plaintiffs and their said business, caused to be constructed a plank bridge or way, of the width of three feet and about sixteen inches in length, which he placed or caused to be placed over and across the southerly sidewalk of said Vesey street, supporting one end thereof at the stoop line of the premises Nos. 35 and 37 Vesey street at a distance of about thirty-five feet from the easterly line of plaintiffs' said store at an elevation above the sidewalk of fully twelve inches, and resting the other end on the roadway of said Vesey street on a wooden horse or rest, so that at the curb side planking is elevated above the sidewalk fully two and one-half feet, so forming a continuous way or bridge from the store Nos. 35 and 37 Vesey street to the roadway of said Vesey street directly across and wholly obstructing the sidewalk, and preventing the plaintiffs and their employes or patrons and all persons from passing and re- passing along said sidewalk to and from Church street, and to and from plaintiff's' said store to the detriment and great injury of plaintiffs and their said business. That said defendant and his agents and servants have, contrary to law and the ordinances of the city of New York, maintained and kept the said obstruction at said place day after day, and every day now for more than six months next preceding the commencement of this action from three to five hours each day, and on an average of fully four hours each day, during the business hours of the day, and notwithstanding the defendant has been often requested to remove the same and to cease to maintain the same, he, said defendant, refuses to discontinue the said obstruction or to remove the same, to the great and irreparable injury of these plaintiffs. That the obstruction aforesaid, maintained contrary to law and threatened to be continued by said defendant, is a public nuisance, of special injury to plaintiffs, and plaintiffs have, as they are informed and advised, no adequate remedy at law therefor. NUISANCE. 557 Art. 5. Pleadings and Practice. That unless the defendant and his servants and employes be restrained by an injunction order of this court, the plaintiffs can only obtain compensation for the damages suffered by them by com- mencing actions for each renewal of the nuisance, which would cause a multiplicity of actions, and while the injury to plaintiffs caused by the said nuisance is great and irreparable, and if not prevented will increase with each renewal, it is incapable of exact measurement in damages and cannot be adequately compensated in money. Wherefore, the plaintiffs demand judgment that the defendant, his agents, servants and employes be restrained by an injunction order of this court from obstructing the southerly side of Vesey street in front of the premises Nos. 35 and 37 Vesey street by any plank way or bridge or other obstruction elevated above the sidewalk and reaching from said store or from the stoop line in front of said store to the roadway of said Vesey street, or from hindering or prevent- ing the plaintiffs or their employes, servants, customers and patrons from the free and unobstructed use or passage of and along the sidewalk of said Vesey street in front of said premises Nos. 35 and 37 Vesey street, by any like obstruction, and that they may have such injunction during the pendency of this action, with such other and further relief in the premises as may seem proper and in accordance with equity, with costs. EDWIN M. WIGHT, Plaintiffs' Attorney. Sub. 2. Practice. In an action to abate a nuisance and recover the damages sus- tained thereby, trial by jury is a matter of right. Even if the complaint is in form as for equitable relief against the continu- ance of a nuisance, and the prayer for damages may be regarded as incidental thereto, yet, as the existence of the alleged nuisance and the amount of damages were both inquired of by jury before the adoption of the present Constitution, the constitutional guar- anty of trial by jury applies to such an action as one of the cases in which it has been heretofore used. Hudson v. Caryl, 44 N. Y. 556; followed in Dorr v. Dansvillc Gas-light Co. 18 Hun, 274. But see jfohnston v. Manhattan Raihvay Co. 41 St. Rep. 682 ; Dcanv. Bcnn, 69 Hun, 519, cited under Article I. See § 968, Code, giving right to jury trial. Rut this dcci-sion is ex- plained in Parker v. Lancy, i T. & C. 590, as not applying to equitable actions for restraining a nuisance. Where a com- plaint asked judgment for damages, and for an abatement of an alleged nuisance, and also for an injunction restraining a continu- ance of the nuisance, held, plaintiff was not of right entitled to a jury trial. Cogsivcll v. N. V. & N. H. R. R. Co. 105 N. Y. 319. 558 NUISANCE. Art. 5. Pleadings and Practice. Where defendants have a right to have the issues tried by a jury, but instead they are brought on before the court without objec- tion, defendants will be held to have waived a jury trial, and the decision of the court will stand in place of the verdict of a jury. Hutchins v. Smith, 63 Barb. 251. Where the verdict was against uncontroverted evidence as to a livery stable being a nuisance, an order setting aside a verdict was not disturbed on appeal. Hor- ton V. Brownsey, 10 St. Rep. 800. An action for nuisance must be tried in the county in which the subject-matter of the action was situated. Where it was an action for depositing foul substances in the river, it was held that the venue should be laid in that county where the nuisance was caused by such deposit. The unlawful act was done in the county where the matter was deposited in the river. Home v. City of Buffalo, 49 Hun, j^i; S. c. 15 Civ. Pro. R. 81. Remedy by action is not barred by the act of abating the nui- sance. Pierce V. Dart, 7 Cow. 609; Lansing v. Smith, 8 Cow. 146, afifirming 4 Wend. 9. No length of time will legalize an unauthorized obstruction of a navigable stream. DeLaney v. Blizzard, 7 Hun, 7. Nor the use of a vault under a sidewalk of a street where the ownership of the soil is not an abutting owner. Patten v. New York Elevated R. R. Co. 3 Abb. N. C. 306. Making no objection to the creation of a nuisance does not estop an action unless its erection was encouraged. Sjww v. Williams, 16 Hun, 468. Nor is it a defence that a nuisance ex- isted before plaintiff acquired his property. Mulligan v. Elias, 12 Abb. (N. S.) 259. A presumptive right to continue a nui- sance can only be acquired by continuous use for twenty con- ecutive years. Campbell v. Seaman, 63 N. Y. 568, afifirming 2 T. &C. 231. A writ of certiorari is the proper remedy to review the deter- mination of a board of health in relation to the existence and abatement of a nuisance. People ex rel. Neiv York Central & H. R. R. Co. V. Board of Health of Seneca Falls, 35 St. Rep. 411. The voluntary abatement of a nuisance after suit begun, will not affect the standing of the plaintiff to maintain an action, but is suf^cient basis for suit by one injured. Heather v. Hearn, 5 N. Y. Supp. 85. It is not necessary before suit to give notice to defendant if he created the nuisance. Dnnsbach v. Hollister, 49 Hun, 352. In an action to enjoin the operation of an oil refinery, NUISANCE. 559 Art. 5. Pleadings and Practice. the refuse from which polluted plaintiff's well, and for damages, it was held "that a jury was properly impaneled to try certain questions of fact and instructed to find on certain issues. Dillon V. Acme Oil Co. 2 Supp. 289. No recovery can be had for past damages beyond a period of six years. Doyle v. Manhattan Ele- vated R. R. Co. 35 St. Rep. 373. Where pending an action for damages to premises caused by a nuisance, the owner sells and conveys the premises, he may still have judgment for such damages, since it will be presumed that the question of the nui- sance affected the price received to the extent of the damages recovered. Dcmby v. City of Kingston, 14 N. Y. Supp. 601. But it was held in Filson v. Crazvford, 5 Supp. 882, that when, after bringing the action, plaintiff parted with her title to the property, and it did not appear that she reserved her claim, be- cause of the injury to the fee by the nuisance, she could not main- tain the action. The heirs of a co-owner of property, who died after the con- struction of the railroad, the maintenance of which as a nuisance is sought to be enjoined, have an interest in the subject matter of the action and are proper parties plaintiff. The administratrix of the deceased co-owner is a proper plaintiff, as she is entitled to the damages that had accrued at the time of his death. SJupard V. Manhattan Ry. Co. 5 Supp. 189. Where a contractor under defendant left a stone in a public street which was an obstruction amounting to a nuisance, in violation of the city ordinance, the defendant was held liable therefor to the person injured thereby. Skelton v. Larkin, 82 Hun, 388, 63 St. Rep. 553, 31 Supp. 234, affirmed, on opinion below, 146 N. Y. 365. The fact that other persons than plaintiff have been injured in consequence of an obstruction of a highway and that it is a pub- lic nuisance, does not preclude a recovery by him for the special damage he has suffered. Where a person using the highway is obliged, in consequence of a fence unlawfully erected to take a longer route or clear away .snow drifts caused by the fence, he may maintain an action against the person who caused the obstruction to abate the nui.sance and to recover his special dam- age. The objection that plaintiff had an adequate remedy at law under the statute for the removal of ob.structions to the hicrh- ways, is not availing unless raised by the pleading or at the trial. Wakeman v. Wilbur, 147 N. Y. 657. 560 NUISANCE. Art. 6. Relief Granted and Measure of Damages. An appeal will lie from an order granting a new trial in an action to abate a nuisance and recover damages, as such action is substantially an action for a nuisance and triable by a jury, and not within subdivision 2 of § 1347 of the Code. Lefrois v. County of Monroe, 88 Hun, 109, 34 Supp. 612, 68 St. Rep. 535. ARTICLE VI. Relief Granted and Measure of Damages. § 1662. § 1662. Final judgment. A final judgment in favor of the plaintiff, may award him damages, or direct the removal of the nuisance, or both. If, in an action for a nuisance, the court or jury reach the con- clusion that the plaintiff's rights have been invaded by the acts of the defendant, and that the latter has been guilty of maintain- ing a nuisance, the plaintiff will be entitled to judgment for dam- ages or for the removal of the nuisance, or for both. Hiitchins v. Smith, 63 Barb. 251. Where one wrongfully erects and main- tains a dam upon his lands, which sets back the waters of a stream upon the lands of his neighbor, a judgment is proper, directing the lowering of the dam as will abate the nuisance. Rothely v. N. V. Rubber Co. 90 N. Y. 30. The awarding of damages as well as the granting of an injunction in the same action is proper under this section. Chapman v. City of Rochester, 23 Week. Dig. 424. Where the owner of the fee of the premises is himself in pos- session, the injury that he sustains by reason of the discomfort produced thereby, where no tangible injury is inflicted, together with the diminution in the value of the premises, are proper ele- ments from which to estimate the damages. If, by reason of the nuisance, he is unable to let his premises, or is compelled to rent them at a less rental than he otherwise would, the measure of damages would be the injury to the rental value; the difference between the rental value if no nuisance existed, and the rental value with the nuisance there, is the true mea.sure. Where there are no buildings upon the premises, but the lands are laid out in #; building lots which, by reason of the nuisance, are reduced in ^ value, a recovery may be had for the difference between the value of the lots with the nuisance there, and their value if no nuisance existed. Wood on Nuisances, § 445 ; Francis v. Schoellkopf, 53 N. Y. 152; Peck V. Elder, 3 Sandf. 126; Jiitte v. Hughes, 67 NUISANCE. 561 Art. 6. Relief Granted and Measure of Damages. N. Y. 267; IVzW V. Stewart, 19 Hun, 272, Where plaintiff in- curred expense in plumbing and fixing .sewers and other expen.ses to prevent further injury from failure of defendant to keep premises and drains on his premises in proper condition, /icM, that injuries sustained because of the stench was a proper item of damages. ^^^uUe v. HugJics, dy N. Y. 267. Where the injury was to the use of the entire premises for the purposes of a dwelling-house, the plaintiff's damages were to be determined by the difference between the rental value of the house free from and subject to the nuisance, and plaintiff is entitled to recover, in the action, all the damages sustained up to the time of trial. Bier v. Cooke, T^y Hun, 38. The measure of damages for a nuisance to real estate by the pollution of a stream is the difference in the rental value free from and subject to the nuisance. Chapman v. Palmer, 9 Hun, 5 17 ; s. C. 77 N. Y. 51. Any diminution in rent resulting from the injuiy may be con- sidered in the estimate of damages. ScJnvab v. Cleveland, 28 Hun, 458. Damages cannot be allowed for injuries after the commencement of the action and service of an injunction. Matthews v. D. & H. Canal Co. 20 Hun, 433 ; Duryea v. Mayor, 26 Hun, 120. But it is competent to submit to a jury whether the allowance of interest is necessary to give plaintiffs compensa- tion. Mairs v. Ma)ihattan Real Estate Association, 89 N. Y. 498, affirming 47 Supr. Ct. 31. A juiy cannot give damages for the prospective continuance of a nuisance. Whitmore v. BiscJioff, 5 Hun, 176. In an action by an abutting owner against a rail- way company for damages, caused by unlawfully changing the grade of a street, damages can be recovered only up to the com- mencement of the action — - the remedy of the plaintiff being by successive actions for his damages until the nuisance shall be abated. It is, therefore, improper to allow for depreciation in the market value of the property, caused by the acts complained of, as it would be equivalent to the introduction of a new action for the conversion of real property, which is unknown to the law. It seems the plaintiff may sue and recover his damages as often as he chooses, once a year, or once in six years, and have succes- sive recoveries for damages. He may enjoin the operation of the railroad and compel the abatement of the nuisance by an action in equity, and where his premises have been exclusively appro- priated by a railroad he may, individually, maintain ejectment. [Special Actions — 36.] 562 XUISANXE. Art. 6. Relief Granted and Measure of Damages. Uline V. N. V. C. etc. R. R. Co. loi N. Y. 98. In an action by an owner of a lot abutting on a city .street, for damages sustained by the erection of a railroad, substantially closing such street to public traffic, he is entitled to recover the depreciation in the value of his property by reason of the erection of such embank- ment. Reining V. N. V., L.etc. R. R Co. i St. Rep. 733, distin- guishing loi N. Y. 98, supra. But it is error, in estimating dam- ages, to take into consideration his loss of business and inconvenience from noise and smoke incident to running the cars in operating the road. Renting v. N. V., L. etc., R. R. Co. i St. Rep. 733. Where annoyance is caused to an abutting owner by a structure placed by a street railroad company in front of his premises, if the structure is lawful he is entitled to damages for all the annoyance caused by it, but it is liable only for such as results from an unreasonable use of it. Mahady v. BnsJiwick R. R. Co. 91 N. Y. 148. The rule of damages in an action by an abutting owner for the obstruction of the street is the impairment of the rental value of the premises from the date of plaintiff's title to the commencement of the action, and the impairment must be determined with reference to the condition of the premi- ses at the former date and the uses for which they were then rented or could have been put to without change. Greene v. N. Y. C. & H. R. R. R. Co. 12 Abb. N. C. 124. In an action for damages by physicians, tenants of certain houses as residences and homes for keeping and treating their patients, against defendant, for constructing and operating an elevated railway in the street abutting plaintiff's premises, /le/d, defendants were liable only for the value of the private property actually taken, and the diminution in value directly affected by the part taken; that the measure of damages was the diminution by such taking of the rental value of the whole, and that damages for loss of business were too remote. Taylor v. Metropolitan EL R. R. Co. 50 Supr. Ct. 311. In an action for damages for overflowing the lands of plaintiff's intestate, by means of embank- ments built by defendant, held, that damages caused by the ex- tension of defendant's roadbed were not to be included in the recovery. Mager v. N. Y. C & H. R. R. R. Co. Abb. Ann. 1882, p. 125. In an action to restrain the defendants from polluting the waters of a ditch, in the vicinity of plaintiff's land and dwelling- house, and to recover damages, the fact that plaintiff did not NUISANCE. 563 Art. 6. Relief Granted and Measure of Damages. rent or propose to rent the premises does not make it improper to admit evidence to show the depreciation in the rental value of the premises occasioned by the wrongful acts of the defendant, or to award the same to the plaintiff as pecuniary damages. Michel Y. Supervisors, 39 Hun, 47. Where a judgment restrained defendant from obstructing the sidewalk in front of his store "by any plankway or bridge, or other like obstruction, elevated above the sidewalk, or from hindering plaintiffs, their employes or cus- tomers from the free and unobstructed use of the sidewalk," held, too broad and modified on appeal so as to require defend- ant to refrain "from unnecessarily and unreasonably obstructing the sidewalk." Callanan v. Gilman, 107 N. Y. 360. The right of action in the nature of a common law right for nuisance is preserved by § 1660, and the judgment in such an action may be for damages or for the removal of the nuisance or for both. At common law an action for a nuisance was regarded as local in its nature and the venue was required tc be laid in the county where the nuisance was situated. Horny. City of Buffalo, 15 Civ. Pro. R. 81. Evidence of the rental value of the plaintiff's premises be- fore and after the existence of the nuisance is admissible on the question of damages. Robinson v. Smith, 25 St. Rep. 647. In an equitable action to restrain a nuisance, damages may be recovered down to the time of the trial, but in an action at law for damages this is not the rule. Barrick v. Shiffcrdcckcr, 48 Hun, 355. Where unlawful acts depreciated the rental value of plaintiff's premises, it was held such depreciation was a proper measure of damages, and where such damages were recovered up to time of trial, is a bar to future damages, although such recovery could not be had under objection in an action for nuisance. Hussncr V. Brooklyn City R. R. Co. 114 N. Y. 434, citing on right to recover damages only to time of commencement of action, Uline V. New York Central & H. R. R. Co. loi N. Y. 98 ; Pond v. Metropolitan, etc. R. R. Co. 112 N. Y. 186. In an action for damages to plaintiff's premises by water negli- gently discharged thereon from defendant's premises, evidence of the rental value of plaintiff's premises with and without the dis- charge of such water is proper on the question of damages. Murray v. Archer, 5 Supp. 326. As to right of reversioner to 564 NUISANCE. Art. 6. Relief Granted and Measure of Damages. recover damages, see Doyle v. Manhattan Elevated Co. 12 Supp. 548, where it is also held the measure of damages where they are recoverable, is the difference on the day of trial between the market value of the property, with the injuries, and what it would have been on the same day if free from injury. The measure of damages in such case is the difference in the value of the property before and after the construction of the road. Morti- mer V. Manhattan R. R. Co. 8 N. Y. Supp. 536. To entitle plaintiff to damages the complaint must be wholly based on the .statute. Piirton v. Watson, 19 St. Rep. 6. Rule of damages is the depreciation of the rental value. Young v. Hurd, 16 St. Rep. 385; Schzvah v. Cleveland, 28 Hun, 458; Colrick v. Swin- burne, 105 N. Y. 503 ; Van Buren v. Fishkill and Matteazvan Water Works, 50 Hun, 448; S. C. 21 St. Rep. 438, 3 Supp. 336; Greejie v. Nezv York Central & H. R. R. Co. 12 Abb. N. C. 124; Drueker v. Manhattan Ry. Co. 5 1 Supr. 429 ; Taylor v. Metro- politan Elevated R. 50 Supr. 311. Damages to a remainderman is the difference in the market value before and after the injury sustained, to be estimated by taking the damages to the fee and apportioning it between the life tenant and the remainderman according to the annuity tables. Thompson v. Manhattan R. R. Co. 6 Supp. 929. As to when interest is to be allowed, see Dnryea v. Mayor, 26 Hun, 120, citing Mairs v. Manhattan Real Estate Assoeiation, 89 N. Y. 498; Par rot t v. Knickerbocker Ice Co. 46 N. Y. 361 ; Walrath v. Red- field, 18 N. Y. 457. In case of a glaring public nuisance, proof of slight special injury is sufificient to give a plaintiff standing in court for redress. Flynn v. Taylor, 26 St. Rep. 649. A plaintiff may, under this article, in the same action, recover damages resulting from a nui- sance and obtain an injunction against its continuance. Robinson V. Smith, 25 St. Rep. 647, 7 Supp. 38. If a person destroys an obstruction in a river on the ground that it is a public nuisance, he must be prepared to show that he did it under the require- ment of the court and overruling public necessity. Coonley v. City of Albany, 57 Hun, 327, 32 St. Rep. 411, 10 Supp. 512. A private action for corruption of the air by offensive odors can only be maintained by one who, as the owner of it, has some legal interest as lessee or otherwise in land, the enjoyment of which is affected by the nuisance, and where it appeared that the 1 1 NUISANCE. 565 Art. 6. Relief Granted and Measure of Damages. property affected by the nuisance was owned by the wife of the plaintiff, it was held plaintiff could not maintain the action. Kavmiaugh v. Barber, 131 N. Y. 211, 43 St. Rep. 283. A municipal corporation can prevent the erection of a nuisance upon lands dedicated to the use of the inhabitants of the city without the aid of a special statute. City of CoJiocs v. Delaware & Hudson Canal Co. 47 St. Rep. 612. A person erecting or maintaining an actual nuisance is liable to an action at the suit of another who has sustained special damages therefrom. Adams V. Pophavi, yG N. Y. 410. The damages are limited to the actual injuries sustained. Lndloiv V. Yonkers, 43 Barb. 493 ; Kane v. Johnson, 9 Bosw. 1 54 ; Albert v. Bleecker St. Ry. Co. 2 Daly, 389. For nuisance affect- ing the occupation of realty, the measure of damages is the loss of rents or the depreciation in rental value. Murray v. Archer, 5 Supp. 326; Wicl V. Steivarf, 19 Hun, 272; Bier v. Cooke, 37 Hun, 38. For injuries permanently affecting the realty, the measure of damages is the difference between what the prop- erty was worth before and after the injury. Peek v. Elder, 3 Sandf. 126; Ruckinan v. Greene, 9 Hun, 225. Where the injury is not permanent in its character, damages cannot be recovered for injuries resulting from it subsequent to the commencement of the action. Dnryea v. New York, 26 Hun, 120; Blnnt v. McCormiek, 3 Den. 283. Nominal damages are recoverable even though the property has actually been benefited by the nuisance. Franeis v. Sehoellkopf, 53 N. Y. 153. The voluntary abatement of a nuisance by the defendant after the commencement of an action, does not effect the plaintiff's right. Heather v. Hearn 5 Supp. 85. Where substantial injury has been suffered, an award of nominal damages is error. Smith v. Ingersoll-Sergeant Rock-drill Co. 12 Misc. 5, 33 Supp. 70, 66 St. Rep. 727, revers- ing 7 Misc. 374, 27 Supp.. 907. 566 NUISANCE. An. 6. Relief Granted and Measure of Damages. Judgment for Damages and Injunction. At a circuit of the Supreme Court, held in and for the Second Judi- cial Department at the court house, in the village of Goshen, Orange county, N. Y. on the 24th day of June, 1886. Present — Hon. Edgar M. CuUen, Justice. MARGARET BOHAN agst. 122 N. Y. 18. THE PORT JERVIS GAS-LIGHT COM PANY. The above-entitled action having been brought to trial at a Circuit Court held at the court house in Goshen, N. Y., on the 24th day of June, 1886, before Hon. Edgar M. Cullen and a jury, and the jury having rendered a verdict in favor of the plaintiff and against the defendant for the sum of $340. Now, on motion of T. J. & J. W. Lyon, attorneys for the plaintiff, it is Ordered, adjudged and determined by said court that the plaintiff, Margaret Bohan, recover of the defendant, The Port Jervis Gas-light Company, the said sum of $340 damages together with the sum of $146.84 costs, amounting in all to the sum of $486.84, and that the plaintiff have execution therefor, etc. It is further Ordered, adjudged and determined by the said court that the defendant be and hereby is enjoined and restrained from so operating and maintaining its gas-works at Port Jervis, Orange county, N. Y., as to emit therefrom noxious and offensive odors or vapors on or to the premises of the plaintiff in said village of Port Jervis. R. P. HOCK, Clerk. Judgment for Damages and to Abate Nuisance with Injunction. SUPREME COURT — County of Delaware. ABIJAH WAKEMAN agst. SYLVIA WILBUR and JACOB WILBUR. 147 N. Y. 664. This action having, by an order of this court, been duly referred to Arthur More, Esq., as sole referee to hear and determine all the issues therein, and the same having been brought on to trial and tried before said referee, and his report and decision therein having been filed whereby he finds that the locus in quo is and at the time of the commencement of this action was a public highway ; that the fence erected by the defendants constituted a public nuisance and NUISANCE. 567 Art. 7. Injunction in Action for Nuisance. one especially injurious to the plaintiff; that the plaintiff has estab- lished such an interest in the said highway and such damage as to entitle him to maintain this action; and that the plaintiff is entitled to judgment that the said fences as they existed at the time of the commencement of this action be removed and that the defendants and each of them be enjoined from again obstructing the said high- way or interfering with the plaintiff's right therein, and that the plaintiff recover of the defendants the sum of $35 damages sustained by reason of said nuisance and the costs of this action, it is now, on motion of Fancher & Sewall, plaintiff's attorneys. Adjudged and decreed that the said fences, as they existed at the time of the commencement of this action, be removed and that the defendants and each of them be perpetually enjoined from again obstructing the said highway or interfering with the plaintiff's rights therein, and that the plaintiff recover of the defendants the sum of $35 damages with $213.51 costs and disbursements, amounting in the whole to the sum of $248.51. GEORGE T. WARNER, Dated August ist, 1887. Clerk. ARTICLE VII. Injunction in Action for Nuisance. The cases cited are principally actions in equity to restrain a nuisance, and as heretofore suggested, such an action is preferable even though an injunction is not asked paidcnte lite. These authorities, hou^ever, show the rule applicable botli on the law and equity side of the court as to the continuance and abatement of a nuisance. In an action for nuisance, if the injury is shown to occur so often as to necessitate a multiplicity of suits, the court may award an injunction. Dunsbach v. Hollistcr, 49 Hun, 352; S. C. 17 St. Rep. 461, 2 N. Y. Supp. 94. The injury apprehended may be to either person or property. It is sufifi- cient that it is offensive and renders the enjoyment of property uncomfortable. Catlin v. Valentine. 9 Paige Ch. 575. Whenever a private individual is specially injured by a public nuisance, the court will restrain the nuLsance on his complaint. MilJiau v. Sharp, 28 Barb. 228, 27 N. Y. 611; Davis v. Mayor, 14 N. Y. 506. An injunction may issue, since the remedy in equity is better adapted to do justice than a mere action for damages. Hallockv. Scheyer, 33 Hun, in. Occupation of a building in a city as a slaughter house as a nuisance, may be restrained by injunction. Metropolitan Board of Health v. Heister, 37 N, Y. 661. So is a fat melting-establishment. Peck v. Elder, 3 Sandf. 568 NUISANCE. Art. 7. Injunction in Action for Nuisance. 126. Injunctions have been granted against a steam mill. Mc~ Keon V. See, 51 N. Y. 300. Against a factor}^ emitting gas. Mulligan v. Elias, 12 Abb. (N. S.) 259. Where one manufactured brick on his own land and used a process in burning by which noxious gases were generated, an injunction was allowed, and the right to an injunction is not affected by the fact that the nui- sance existed before plaintiff purchased the land. Campbell v, Seenian, 63 N. Y. 568. An injunction may be granted at the instance of an abutting owner to prevent obstruction of the high- way. Newman v. Nellis, 97 N. Y. 285. Also against blasting near plaintiff's premises so as to injure the premises, even though blasting was done in accordance with the requirements of the city ordinance. Rogers v. Hanfield, 12 St. Rep. 671. An injunction perpetually restraining defendants from standing horses, carriages and hacks in front of plaintiff's premises for the purpose of letting them for hire, was granted. McCaffcry v. Smith, 41 Hun, 117. Defendants were restrained from arranging the awnings and shutters from in front of their store so as to deprive the adjoining building of plaintiff of light and air. Lavery v. Hamiigan, 52 Supr. Ct. 463. It is sufficient to justify continuance of an in- junction against the threatened erection of a public nuisance that plaintiff has or will suffer substantial damage that is special to him. Forty -secojid St. R. R. Co. v. Thirty-fourth St. R. R. Co. 52 Supr. Ct. 252. It is proper to grant an injunction to restrain a defend- ant from so digging on his own land as to injure the highway, or as to cause the same to fall down. Milbur)i v, Fozvler, 27 Hun, 568. The owner of wharves upon the bank of a navigable stream may have an injunction to prevent defendants from emp- tying refuse into such waters, if it appears that the deposit causes an interference with navigation and is injurious to some right of plaintiffs. Hudson River R. R. Co. v. Loch, 7 Rob. 418. See, however, Knickerbocker Ice Co. v. Schultz, 116 N. Y 383. An injunction may be granted to restrain one from obstructing a street by building a house therein, which produces special injury to plaintiff, by affecting the enjoyment and value of their adjoin- ing property. Corning v. Lozvcrrc, 6 Johns. Ch. 439. In case of a noxious trade which constitutes a nuisance, it is of no conse- quence whether complainants reside on their property or not. It is sufficient that the nuisance is calculated to diminish the value NUISANCE. 569 Art. 7. Injunction in Action for Nuisance. of the property. Peck v. Elder, 3 Sandf. 129. Injunction is the proper remedy for a continuous nuisance. McKeon w See, 5 1 N. Y. 300. A defendant may be enjoined from depositing foul sewage from a sewer, on plaintiff's premises. Beech v. City of Elmira, 22 Hun, 158. One maintaining a common nuisance may be restrained in equity from continuing it by one suffering peculiar damage. Adams v. Pophavi, 76 N. Y. 410. The fact that a building in the course of construction may, when com- pleted, be used in a manner detrimental to the rights of an adjoining owner, is no ground for granting an injunction, when the building itself is not a nuisance. Depierris v. Mattern, 10 N. Y. Supp. 626. An action can be maintained and injunction will issue to restrain the continuance of a nuisance after resolution of board of health declaring it such, and notice to the person maintaining it. Bell V. City of Rochester, 33 St. Rep. 739. The owner of a city lot is not entitled to enjoin the erection of a frame building on adjoining property, in violation of the fire regulations of the city; although the statute makes such a building a common nuisance, the plaintiff is not entitled to abate it in the absence of an alle- gation of special damages. Young v. Slieu, 56 Hun, 307 ; S. C. 30 St. Rep. 608, 9 Supp. 349. The court will not adjudge the removal of a valuable building because it obstructs property in which the plaintiff has a technical right of way, where complete indemnity can be secured to him by damages. Welsh v. Tay- lor, 50 Hun, 137; S. c. 19 St. Rep. 735, 2 N. Y. Supp. 815. An injunction was refused a telegraph company to prevent an abutting owner from removing its poles, though the lines of the company were erected under legislative sanction. Metropolitan Telegraph Co. v. Colwell Lead Co. 50 N. Y. Supr. 488. It was also refused against the erection of a wharf on a navigable river below high water mark, not shown to so materially obstruct the . navigation as to be a nuisance. Delazuare & Hndsofi Canal Co. V. Lawrence, 2 Hun, 163. Also refused against a floating ele- vator which was not an obstruction to navigation. People v. Horto7i, 64 N. Y. 610. Also denied against removal of storm door extending beyond house line. Kiernan v. Newton, 20 Abb. N. C. 398- A mine owner cannot be restrained from blasting in the night time, on the ground that it disturbs the sleep and affects the 570 NUISANCE. Art. 7. Injunction in Action for Nuisance. health of the owner of the surface and of his family or diminishes the value of his estate, unless it is shown that such blasting is unnecessary. Marvin v. Brezvster Iron Mining Co. 55 N. Y. 538. An injunction should not be granted against an act which is not of itself a nuisance, until the question whether it is such has been determined upon a proper issue. Vejitier v. Jorda^i, 2 Edms. 473. So held with reference to an injunction against lay- ing water pipes in a village highway by a corporation. Crooke V. FlatbiisJi Water Works Co. 27 Hun, 72. An injunction will not be granted to restrain an erection as a nuisance where it has been acquiesced in but still less where it was encouraged by the parties seeking relief. Harrison v. Lee, 9 N. Y. Leg. Obs. 34. Injunction was refused against the com- missioner of public works to restrain him from cutting down telegraph and telephone poles on ground they were a public nui- sance. American Rapid TelegrapJi Co. v. Hess, 125 N. Y. 641. No precedents are given for injunctive relief other than the complaints and judgment, supra, since that relates more particu- larly to equity practice and is usually considered under the equitable action to restrain nuisance. CHAPTER VIII. ACTION BY REVERSIONERS AND JOINT TENANTS. PAGE. Article i. Action against guardians or trustees holding over. Sec. 1664 571 2. Action by reversioner. Sec. 1665 571 3. Where joint tenants may maintain action against each other. Sec. 1666 573 Sections of the Code of Procedure and Where Found in this Chapter: SEC. ART. PAGE. 1664. Certain persons holding over deemed trespassers. Action against them I 571 1665. Reversioner, etc., may maintain action 2 571 1666. Joint tenant, etc., may maintain action against his co-tenant.. . 3 573 ARTICLE I. Action Against Guardians or Trustees Holding Over. § 1664. § 1664. Certain persons holding over deemed trespassers. Action against them. A person in possession of real property, as guardian or trustee for an infant, or having an estate determinable upon one or more lives, who holds over and continues in possession, after the determination of his trust or particular estate, without the express consent of the person then immediately entitled, is a tres- passer, An action may be maintained against him, or his executor or adminis. trator. by the person so entitled, or his executor or administrator, to recover the full value of the profits, received during the wrongful occupation. Section 1664 is the provision of § 7(1 Edm. 700) condensed, but not materially changed. The statute is said in Livingston v. Tanner, 14 N. Y. 64, to have changed the character of the person holding over from that of a tenant at sufferance to that of a tres- passer, and that, therefore, no notice was necessary before bring- ing an action of ejectment. ARTICLE II. Action pa- Reversioner. § 1665. § 1665. Reversioner, etc., may maintain action. A person, seized of an estate in remainder or reversion, may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years. t57il 572 ACTION BY REVERSIONERS AND JOINT TENANTS. Art. 2. Action by Reversioner. Persons to whom lands have been devised in trust, may main- tain an action for trespass causing an injury to the inheritance not- withstanding the premises are in the possession of the tenant under a lease. Mortimer v. Manhattan R. R. Co. 29 St. Rep. 262 ; Macy v. Metropolitan Elevated R. Co. 1 2 Supp. 804 ; Doyle V. Manhattan Ry. Co. 12 Supp. 548. An action for injunction and damages against an elevated railroad company may be main- tained by abutting owners although they do not own the fee of the street, or by remaindermen. Thompson v. Manhattan R. R. Co. 29 St. Rep. 720. Under § 1665 a reversioner is entitled to an injunction to pre- vent an injury to the inheritance notwithstanding the existence in full force of a lease of the premises granted by him. Macy v. Metropolitan Elevated Ry. Co. 59 Hun, 365, 36 St. Rep. 245, affirmed, on opinion in Galway v. Metropolitan Elevated Ry. Co. 128 N. Y. 624. While, perhaps, at common law, the owner of the reversion would not be entitled to maintain an action for damages, § 1665 expressly provides for an action for injury to the inheritance notwithstanding any intervening estate for life or for years. Korn v. New York Elevated Ry. Co. 39 St. Rep. 322. An elevated railroad erected in a city street, the right to con- _J-. struct and operate which has not been obtained by purchase from the abutting owners or by proceedings to condemn, is as to them an illegal structure and a continuing trespass upon their tf, rights. It is an injury to the inheritance, and a person seized of ^ an estate in remainder in premises abutting upon the street may maintain an action. Thompson v. Manhattan Ry. Co. 130 N. Y. 360. The construction and operation of a railway in a street in front of plaintiff's property being a continuous nuisance, the owner of the reversion of the premises may recover damages accruing within the period of limitation of six years though the railway was constructed and operated before that period. Doyle v. Manhattan R. R. Co. 12 Supp. 548. 16 Daly, 506. Under § 1665 the remainderman may recover though it appears that the injuries complained of occurred during the demise of the premises injured. Ottingcr v. New York Elevated R. R. Co. 15 Supp. 18. ACTION BY REVERSIONERS AND JOINT TENANTS. 573 Art. 3. When Joint Tenants may Maintain Action Against Each Other. ARTICLE III. When Joint Tenants May Maintain Action Against Each Other. § 1666. § 1666. Joint tenant, etc., may maintain action against his co-tenant. A joint tenant or a tenant in common of real property, or his executor or administrator, may maintain an action to recover his just proportion against his co-tenant, who has received more than his own just proportion, or against his executor or administrator. The codifier's note to this section states that it is proposed as a substitute for §9(1 Edm. 700), which is as follows: "One joint tenant or tenant in common and his executors or administrators may maintain an action of account or for money had and received against his co-tenant for receiving more than his just proportion ; and the like action may be maintained by them against the executors or administrators of such co-tenant." "The abolition of distinct forms of action rendered the recon- struction of this section unavoidable. In so doing it was neces- sary to avoid disturbing the ruling in Woolvcr v. Knapp, 18 Barb. 265, and Wilcox v. Wilcox, 48 Barb. 327, to the effect that in the absence of any agreement or any demand to be allowed to enjoy the premises, one tenant in common could not recover against another for use and occupation. A provision that each should account to the other for more than his share of the 'pro- ceeds' of the land, would, at least, raise the question whether the ruling was not abrogated by the statute." "It is impossible, however, to confine the right of action to the plaintiff's share of rents and profits received, for the co-tenant may have received moneys from various other sources, e. g. , damages for a trespass or compensation for land taken for public use. Brinckcrhoff v. Wanplc, i Wend. 470. This section, therefore, purposely refrains from defining the subject of the 'ju.st propor- tion,' leaving the courts to expound it in accordance with settled rules of law." — Note by Codificrs. In an action by one tenant in common against his co-tenant for an account, the plaintiff can only recover a proportion of the rents received by the defendant, not an occupation rent for the portion of the premi.ses occupied by the latter. Josl)m v. Joslyn, 9 Hun, 388. A tenant in common in possession under a claim of exclusive title, hchU not liable for rents and profits and use, until required by his co-tenants to yield to and recognize their 574 ACTION BY REVERSIONERS AND JOINT TENANTS. Art. 3. When Joint Tenants may Maintain Action Against Each Other. rights. Vandcrzec v. Slitigerland, 19 Week. Dig. 107. One tenant in common cannot recover from his co-tenant their joint muniments of title. Clozvcs v. Hazvley, 12 Johns. 484. A ten- ant in common who takes a lease of the moiety of his co-tenant and continues in possession after the expiration of the term is not liable to an action for use and occupation as a tenant holding over. McKay v. Mumford, 10 Wend. 351. A tenant in com- mon who denies and contests his co-tenant's right is, if unsuc- cessful, bound to account for rents and profits for at least six years. Taggart v. Hurlburt, 66 Barb. 553. See for same principle 2iS\n Joslynv. yoslyn, 9 Hun, 2)^?>, supra, Roscboom v. Roseboovi, 15 Hun, 309; Dresser v. Dresser, ^o Barb. 300 ; Zapp v. Miller, 23 Week. Dig. 378; Ford v. Knapp, 102 N. Y. 138. Such tenant in common in possession must, however, pay rent, taxes, and ordinary repairs. McAlcar v. Delaney, 19 Week. Dig. 252. See cases cited under Partition, p. 274. The cases on this subject are col- lated and considered in Muldowny v. Morris & Essex R. R. Co. 42 Hun, 444; following MeCabe w. MeCabe, 18 Hun, 153. The court distinguishes that case from those cited, except Ford v. Knapp, on the grounds: ist. The joint or common premises in those cases were farming lands and open to the occupation and free to the enjoyment of all owners. 2d. The owners in each case were seized of an estate of co-ordinate rank. 3d. In all the cases there was failure of proof of demand on the part of the com- plaining tenant to be allowed to enjoy the premises. It is said in Kingsland v. Chetwood, 39 Hun, 602, that where one tenant in common collects and appropriates rents belonging to his co-tenant, the latter has a lien upon the interest or share of the person so appropriating it, for reimbursement, but in Bowen V, Ka2ighran, i St. Rep. 121, it is held that one tenant in com- mon, who advances money with the knowledge of his co-tenant, to improve the common property, does not, ipso facto, acquire an equitable lien on the co-tenant's share for the moneys so advanced ; and an agreement that such moneys shall be repaid out of the proceeds of the land does not create an equitable lien as against her grantee in good faith. In an action by a tenant in common against his co-tenant to recover his share of the rents, which the co-tenant has collected under an arrangement to divide, defendant cannot counterclaim the expenses of improve- ments made without the assent of plaintiff. Coakley v. Maker, ACTION BY REVERSIONERS AND JOINT TENANTS. 575 Art. 3. When Joint Tenants may Maintain Action Against Each Other, 36 Hun, 157. See cases cited as to rights of co-tenants. Where one of severaftenants of real property acts as agent for all upon a contract, express or implied, that he will collect the rents, pay the taxes, etc., and pay over to his co-tenants their shares of the net income, an action may be maintained by them jointly, as upon a money demand arising on contract. Tiiers v. Tuers, 16 Abb. N. C. 464. Where plaintiff and defendant were tenants in common of prop- erty, the plaintiff having been induced to leave the premises, by the fraud or undue influence of the latter, it was an ouster, and that plaintiff could maintain an action of ejectment, and an action to recover mesne profits, so held in an action to set aside trans- fers of a moiety of certain real estate on the ground of undue influence and fraud. It was also held in that case that the defendant having paid taxes on the property during the lifetime of the tenant for life, he could not charge the amount so advanced to the plaintiff. Zapp v. Miller, 109 N. Y. 51. Where a deed to two or more grantees is so delivered and accepted as to be operative as a grant to all, one of them having the deed in possession has no right to refuse to permit it to be recorded, and in case of such refusal, an action is maintainable against him on behalf cf another of the grantees to compel a delivery of the deed to the proper officer for record. SmitJi v. Cole, 109 N. Y. 436. One tenant in common who receives no money or property from the premises owned in common by himself and others, but simply occupies them himself, is not liable to his co-tenants for the value of the use of the property so occupied by him. Section 1589 of the Code, providing for the adjustment of the rights of the parties in partition, does not create any greater liability as against a party in possession to account for rents and profits while he may be only in their actual occupancy, than existed prior thereto. Rich v. Rich, 50 Hun, 199. It is said in the opinion by Daniels, J., in this case, that Scott v. Guernsey, 48 N. Y. 106, was decided in 1871, and while the same subject has frequently been before the court since that time it has not been recognized as a controlling authority or one which should be followed ; citing 40 Barb. 300; 18 Barb. 265; 48 Barb. 327; 9 Hun, 388; 15 Hun, 309; 18 Hun. 153; 46 Hun, 598. The latter case, Le Barren v. Babcock, 46 Hun, 598, holds that 5/6 ACTION BY REVERSIONERS AND JOINT TENANTS. Art. 3. When Joint Tenants may Maintain Action Against Each Other. where plaintiff cultivated a piece of land of which he was one of the tenants in common and sowed it with oats which he cut, and while they were lying on the ground the person acting under one of his co-tenants gathered them and drew them away, that plain- tiff was lawfully in possession and had the right to cultivate the ground and sow and harvest the oats, and as they were the pro- duct of his labor, he was entitled to maintain an action for their conversion ; but that as to hay cut by the plaintiff and then gath- ered and carried away by the defendant, it was held that as grow- ing grass is and should be part of the realty until severed and unlike farm crops is in some sense a self-supporting production, the hay was not the product of the labor of plaintiff, and he acquired no additional right thereto by severing it from the land. The rule that the mere occupation of land by one tenant in common does not make him liable to his co-tenants for the rents and profits, is, however, subject to the qualification that the tenants in possession shall not be holding adversely to those mak- ing the claim. So held in Stephenson v. Cotter, 23 St. Rep, 74, which also holds that where a person under the impression that she was the sole owner of the premises, built a house thereon without reference to the other owners, that she was not entitled to the sum laid out by her as for permanent improvements. As to the first proposition, 109 N. Y. 57, snpra, is cited as authority. Where the interests of tenants in common are distinct and readily ascertainable on an accounting showing the profits, either tenant may demand of his co-tenant having possession of the whole, his share, and on refusal or conversion may sue in his own name without joining all the other co-tenants. Kutz v. Richards^ 40 St. Rep. 693. In the absence of the actual ouster by the tenant in possession or the total denial on his part of the right of his own co-tenants, the latter is not entitled to recover in ejectment. It seems that a denial of plaintiff's title would be sufficient to raise the question. Gibnan v. Gilinan, iii N. Y. 265. The jurisdiction of the Supreme Court to entertain an action for an accounting between co-tenants in equity, is concurrent with its jurisdiction to entertain an action at law to recover the amount alleged to be due from one co-tenant to another, and where such concurrent jurisdiction exists, the .six years statute of limitations applies. St. JoJiu v. Coates, 45 St. Rep. 431. 63 Hun, 460. CHAPTER IX. ACTION FOR CUTTING TREES OR TIMBER AND WHEN TREBLE DAMAGES ALLOWED. Sections of the Code of Procedure and Where Found in THIS Chapter: Sec. art. page. 1667. Action for cutting, etc. , trees r 577 1668. Id. ; when treble damages may be recovered i 577 1669. Treble damages for forcible entry or detainer i 577 § 1667. Action for cutting, etc., trees. If any person cuts down and carries off any wood, underwood, tree, or tim- ber, or girdles or otherwise despoils a tree on the land of another, without the owner's leave; or on the common, or other land, of a city, village, or town, without having right or privilege in those lands, or license from the proper officer; an action may be maintained against him, by the owner, or the city, village, or town, as the case may be. § 1668. Id.; when treble damages may be recovered. In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum so stated. Thereupon, if the inquisition, or where issues of fact are tried, the verdict, report or decision, awards him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases, judgment must be rendered for single damages only: 1. Where the verdict, report, or decision finds affirmatively that the injury, for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. 2. Where the defendant has pleaded, and the verdict, report, or decision finds affirmatively, that the injury, for which the action was brought, was committed by taking timber, for the purpose of making or repairing a public road, or a public bridge, or by taking any wocd, underwood, or tree, for a like purpose, by authority of a commissioner or overseer of highways. § 1669. Treble damages for forcible entry or detainer. If a person is disseized, ejected, or put out of real property, in a forcible man- ner; or after he has been put out, is held and kept out, by force, or by putting him in fear of personal violence, he is entitled to recover treble damages, in an action therefor against the wrong-doer. For rule as to when treble damages are allowed in an action for waste, see § 1656, Art. 11, of Chap. VL Sections 1667 and 1668 are codified from the Revised Statutes, and so amended, as is said by the codifiers, as to be in accordance with the true construction of the statute. The provisions of 2 [Special Actions — 37.] [577] 578 ACTION FOR CUTTING TREES OR TIMBER, When Treble Damages Allowed. R. S. 338, § I, from which § 1667 is taken, were not intended exclusively for the benefit of persons having a present estate in possession. Remaindermen in fee may maintain an action for an injury to the inheritance by cutting timber, and the fact that there is a subsisting estate for life in another person is not an insuperable obstacle to such an action. Joint owners of lands, deriving their title from a common ancestor, together represent the estate which their ancestor had in his lifetime, and for an injury to their common property, where the injury is common to all, they may maintain a joint action. Van Deiisen v. Young, 29 Barb. 9. In such an action it is not necessary for the intervening owner of an estate for life, or for years, to unite as a party plain- tiff. When remainderman in fee cannot recover for any injury the life tenant may have received by the acts of defendant, he must maintain a separate action. The injury in an action by a remainderman should be confined strictly within the statute giv- ing treble damages to the damage done to the inheritance solely. Van Deusen v. Young, 29 N. Y. i. In an action for cutting and removing standing timber the measure of the damages is the value of the standing timber at the place where it stood when the trespass was committed, unless the action is brought and a recovery had under the statute where the damages are trebled. Stanton v. Pritchard, 4 Hun, 266; citing Whitbeck v. N. Y. C. R. R. Co. 36 Barb. 644. When trees standing on the boundary line are destroyed by one of the adjoining proprietors, trespass lies by the other whether his interest be several or as tenant in common. Nixon V. Stillwell, 23 St. Rep. 474, following Dubois v. Beaver, 25 N. Y. 123. Plaintiff was engaged upon unimproved and unoccupied wood lots in removing timber therefrom ; had cut a portion into logs and drawn off a part. Defendant ordered him to stop the removal and took possession of the logs and converted them. No proof of title being given by either party, it was held that plaintiff estab- lished a sufficient possession of the logs to enable him to maintain the action. Lyon v. Sellexv, 34 Hun, .124. The plaintiff is entitled to an execution against the defendants personally in an action brought under §§ 1667 and 1668, although judgment enjoins the defendant from the continuance of the wrong- ful act. The demand for an injunction does not change the ACTION FOR CUTTING TREES OR TIMBER. 579 When Treble Damages Allowed. character of the action, which is still one for trespass. People, ex rcl. Gates, v. Fargo, 4 App. Div. 544. It is said in Firmin v. Firviin, 9 Hun, 571, distinguishing 4 Hun, 266, supra, that in trespass for cutting and carrying away logs, the plaintiff may recover their value as they lay upon the land ; he is not restricted to the value of the trees as they stood. For trespass in cutting and removing timber from a farm, evi- dence is proper as to the value of the farm, with the timber, and its value after the timber is cut, and this difference is the proper measure of damages. Argotsingcrv. Vines, "^2 N. Y. 308. Where an executrix has possession, and is entitled as such to the rents, issues and profits of the realty until sold, she may maintain the action for trespass under these sections. Ogsbiiry v. Ogsbury. 45 Hun, 388. Where an action to recover damages for an alles-ed unlawful taking of timber, cut from land of which the plaintiff has not the actual possession, is based entirely upon a construc- tive possession, arising out of his claim of title to the land, de- fendant may contest the validity of such title. People v. Haga- dor)i, 104 N. Y. 516. Where a complaint in an action of trespass alleges an injury to the inheritance, a denial of the allegation of the complaint, by the defendant, in his answer, raises a question as to title of real property, even though the plaintiff, in his com- plaint, has alleged possession of, as well as title to the land. Claim for treble damages can only be made by the owner of the land, and if the owner demands such damages, he is within the section. Crowcllv. Smith, 35 Hun, 182. But though the com- plaint be framed under the statute giving treble damages, yet the plaintiff may recover single damages on proof of a common law trespass. Dubois v. Beaver, 25 N. Y. 123; Starkzveather v. Qiiigley, 7 Hun, 26. The provision as to the manner of assessing treble damages under the Code is as follows: g 11S4. Where double, treble, or other increased damages, are given by statute, single damages only are to be found by the jury; except in a case where the statute prescribes a different rule. The sum so found must be increased by the court, and judgment rendered accordingly. This is in accordance with the rule in Neivcoinb v. Butterfield, 8 Johns. 342; King v. Havens, 25 Wend. 420 ; Livingston v. Plainer, i Cow. 175. Where the boundary line divides the trunk of a tree it belongs, it seems, to the adjoining proprietors as ten- ants in common ; where such a tree is destroyed by one of the 58o ACTION FOR CUTTING TREES OR TIMBER, When Treble Damages Allowed. adjoining proprietors, trespass lies by the other. Dubois v. Beaver, 25 N. Y. 123. An action of trespass under the statute, to recover treble dam- ages for the forcible disseizin from lands, cannot be sustained unless there be something beyond a mere trespass — the entry or detainer must be notorious, or personal violence must be used, or there must be threats, or menaces of violence, or other circum- stances exist inducing alarm, or terror in the occupant of the premises. The mere breaking the lock of an out-house, or even, it seems, of a dwelling-house, is not per se sufficient to maintain the action. Willard v. Warren, 17 Wend, 257. The owner of land wrongfully held out of possession may, if he can regain pos- session peacefully, maintain it, and may lawfully resist an attempt, by the former occupant, to retake it ; there can be no wrongful entry, by the true owner, where the entry was both lawful and peaceable. Bliss v. Johnson, Ji N. Y. 529, See, also, as to what constitutes a forcible entry and detainer, § 2233 of Code, and cases cited; Fiero on Special Proceedings, 1st ed,, 295, etc. Recovery for waste is limited to the amount of damages to the freehold. MeCay \. Wait, 51 Barb. 225; Harder v. Harder, 26 Barb. 409; Robinson v.Kinie, i T. & C. 60; l^an Deusen v, Yonng, 29 N. Y. 9. It is not necessary for the complaint in an action of waste to contain a reference to the statute relating to treble dam- ages to entitle the plaintiff to such damages. Carrier v, Ingalls, 12 Wend. 70; Robinson v, Kime, i T. & C. 60. The statute in regard to waste will not excuse a defendant from treble damages because he had good reason to believe the land to be his own. Robinson v. Kime, 70 N. Y. 147; Rutherford w. Aiken, 3 T. & C. 60. If in such an action the plaintiff fails to prove that the injury to his estate is equal to the value of the defendant's estate, he cannot have a judgment to recover the place wasted and treble damages. An allegation to that effect in the complaint will not be admitted by the default of the defendant. Harder v. Harder, 26 Barb. 409. When the complaint contained a claim for treble damages and also another cause of action, held, plaintiff was not entitled to treble damages. Van Deusen v. Yotmg, 29 N. Y. 9. The right to treble damages was not affected by the old Code. Robinson v. Kime, 70 N. Y. 147. In an action to recover treble damages under § 1669 for dis- seizin, or ejection of a person in a forcible manner from real prop- ACTION FOR CUTTING TREES OR TIMBER. 581 When Treble Damages Allowed. erty, there can only be a recovery for damages happening at and after the time of the disseizin, and whatever is recovered must be for the consequences of the force used. Labro v. Campbell, 17 St. Rep. 749. 56 Supp. 70. A complaint alleging that defendant unlawfully and willfully entered upon plaintiff's land and unlawfully and willfully cut down trees thereon to plaintiff's damage, states facts sufficient to constitute a cause of action ; as if treble damages were improperly claimed plaintiff would be entitled to single damages if the facts proven showed it. Von Hoffman v. Kendall, 44 St. Rep, 484. In an action for trespass for cutting shade trees in front of plaintiff's premises, the plaintiff recovered as damages the differ- ence in value of the land before and after cutting down trees, and on application for treble damages under §§ 1667 and 1668, it was held plaintiff was entitled to treble damages, and that such dam- ages were to be estimated upon the whole amount of the plain- tiff's recovery, and not simply upon the value of the wood cut down and carried away. The jury were told that on the question of damages they were confined to the difference in the value of the land before and after the cutting down of the trees, and it was held that evidence to show the value of the wood which was taken away after it was cut did no harm to the defendant. McCrudcn v. Roc Just cr Ry. Co. 5 Misc. 59. In Nixon v. Stilhvcll, 23 St. Rep. 474, it was held that in an action for cutting down and carrying off certain trees that "the value of the trees, merely for wood, is not the proper measure of damages, but the jury must take into consideration the location and the use to which they were put and the value to the land on which they stood." It was further held that the damages which were trebled were excessive upon the facts of the case. 52 Hun, 353; s. c. 5 Supp. 248. In an action to recover damages for trespass in cutting and removing trees growing upon plaintiff's land without his consent, the measure of damages is the difference between the value of the land before the timber was cut and its value after the cutting and destruction of the timber complained of. In such an action treble damages are a legal consequence of the finding of damages by a jury where treble damages are demanded by the complaint, and where there is no affirmative finding by the jury that the injury for which the action was brought was involuntary or that the de- 582 ACTION FOR CUTTING TREES OR TIMBER. When Treble Damages Allowed. fendant when he committed the injury had probable cause to be- Heve the lands in question were his own. Htivics v. Proctor, 73 Hun, 265. In an action to recover real property or the possession thereof plaintiff may demand in his complaint, and in a proper case, to recover damages for withholding the property, and under § 1669, if the plaintiff was disseized and kept out of the possession by force, he may have treble damages in an action therefor against the wrongdoer. Where the plaintiff has title, ejectment will lie for a forcible entry and detainer, and in such a case treble dam- ages may be demanded and recovered if he establishes that the disseizin was actually effected by force. He may, if he elects, resort to his action of ejectment and in the same suit recover dam- ages which may be trebled, if the wrongful entering or withhold- ing are shown to be of the character described in this section. Compton V. The Chelsea, 139 N. Y. 538. Plaintiff will not be entitled to treble damages where the com- plaint alleges and the proof shows the conversion of plaintiff's goods by the defendant concurrently with the forcible ejection, and some part of the verdict was based upon such conversion. Kirchner V. Nexv Home Sewing Machine Co. 16 Supp. 761, 42 St. Rep. 907. Where it appeared that defendant was in possession and plain- tiff visited the premises to take possession, and defendant attempted to eject her, but went away leaving her upon the premises, and plaintiff subsequently left the premises, defendant remaining in possession, treble damages will not lie. O' Donne II v. Mclntyre, 2 St. Rep. 689. Plaintiff will not be allowed to treble the damages found by the verdict of a jury if the increased amount will exceed the sum demanded in the complaint. Pilaris v. Gere, 31 Hun, 443. Where the waste complained of is the result of neglect to repair rather than tortious conduct, the landlord, in an action against his tenant, cannot recover treble damages. Danzinger v. SilbertJian, 2 1 Civ. Pro. R. 283. A lessee for years of premises upon which trees stand cannot maintain an action under § 1667 for treble damages for the cutting down of trees. Such a person is not an owner within the meaning of this provision. Such a lessee may, however, maintain a common-law action for trespass based upon the fact that he is in possession, and may recover his actual damages. Lewis v. Thonipson, 3 App. Div. 329. II ACTION FOR CUTTIXC. TREES OR TIMBER. 583 Precedent for Complaint. Section 280, of chapter 395, Laws of 1895, is as follows: § 280. Actions for trespasses upon forest preserve. The board of fisheries, game and forest may bring in the name of the people of the State any action to prevent trespass upon or injury to the forest preserve and recover damages therefor, or to recover lands properly forming part of the forest preserve, but occupied or held by persons not entitled thereto, or for the maintenance and protection of the forest preserve, which any owner of lands would be entitled to bring; or for cutting or carrying away, or causing to be cut or assisting to cut, any tree or timber within the forest preserve, or any bark thereupon, or removing any tree, timber or bark, or any portion thereof from such forest preserve. Every person violating the provisions of this section, re- lating to the cutting or carrying away any timber, trees or bark, shall forfeit to the State the sum of twenty-five dollars for every tree cut or carried away by him or under his direction. The board of fisheries, game and forest may, with the consent of the attorney-general and comptroller, employ attorneys and counsel to prosecute any such action or to defend any action brought against the board or any of its members or subordinates arising out of their or his official conduct with relation to the forest preserve. Any attorney or counsel so em- ployed shall act under the direction of and in the name of the attorney-general. Where such attorney or counsel is not so employed, the attorney-general shall prosecute and defend such actions. A preliminary or final injunction shall, on application in an action brought by or at the instance of the board of fisheries, game and forest, be granted restraining any act or trespass, waste or destruction upon the forest preserve. All such actions for the prosecution shall be brought in the county where the trespass is alleged to have been committed. Precedent for Complaint Setting Out Cause of Action Un- der Statute and Also for Trespass Under Code. SUPREME COURT — Fulton County. THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, agst. RUSSELL E. HOLMES, Defendant. The complaint of the People of the State of New York, the plain- tiff herein, by the Attorney-General, shows to the court and alleges: That this action is brought pursuant to i; 112 of chapter 332 of the Laws of 1893, known as chapter 43 of the General Laws, and to § 280 of chapter 395 of the Laws of 1895, known as chapter 31 of the Gen- eral Laws, and the provisions of the statutes amendatory thereof, or granting like authority, and on the order of the Fisheries, Game and Forest Commission of the State of New York. For a first cause of action herein, plaintiff shows, upon information and belief: I. That heretofore during the year 1894, at the town of Caroga in the county of Fulton, the defendant entered upon the lands in the 584 ACTION FOR CUTTING TREES OR TIMBER. Precedent for Complaint. forest preserve owned by and in possession of the State of New York, situate in said town and county, and described as follows: Lot 68, subdivision 10, Glen Bleecker and Lansing patent. II. That the defendant, at the times mentioned, wrongfully and unlawfully and without right or authority, cut, carried away, caused to be cut and carried away and assisted in cutting and removing trees growing and standing upon said premises, and timber and logs remaining on said premises, the property of the State of New York, as follows, namely: 2,000 trees. III. That said acts of defendant were committed without the license or consent of the plaintiff and without right or authority and contrary to and in violation of the provisions of § 112 of chapter 332 of the Laws of 1893, known as chapter 43 of the General Laws, and § 280 of chapter 395 of the Laws of 1895, known as chapter 31 of the General Laws, whereby the State became entitled to maintain an action for such cutting, carrying away and causing to be cut or assisting to cut or removing such trees and timber, the said premises being within the forest preserve of the State of New York, and this defendant thereby became liable to the State in the sum of $25 for every tree cut or carried away by him or under his direction, and that an action has accrued to recover the same, and this plaintiff is entitled to recover from said defendant the sum of $50,000 as and for the penalty and forfeiture provided for by said statutes, for which sum plaintiff demands judgment. For a second and further cause of action, the plaintiff herein shows upon information and belief: I. That heretofore during the year 1894, at the town of Caroga in the county of Fulton, the defendant e»tered upon lands in the forest preserve owned by and in the possession of the State of New York, situate in said town and county, and described as follows: Lot 68, subdivision i. Glen Bleecker and Lansing patent. II. That the defendant at the times mentioned, wrongfully and unlawfully and without right or authority, cut, carried away, caused to be cut and carried away and assisted in cutting and removing, and converted to his own use, timber and logs remaining on said premises the property of the State of New York, as follows, namely: 2,000 trees; that such trees were of the value of $5 each. III. Whereby the plaintiff lost said trees and timber, and the defendant committed waste upon said lands whereby he became lia- ble to pay treble the amount of actual damages sustained by this plaintiff, such actual damages being the sum of $10,000, and plaintiff demands judgment for the sum of $30,000. Wherefore, plaintiff demands judgment against this defendant for the sum of $80,000 besides the costs of this action. T. E. HANCOCK, Attorney-General, Attorney for Plaintiff. W. CHAPTER X. NOTICE OF PENDENCY OF ACTION. PAGE. Article i. Contents and filing of notice of pendency. Sees. 1670, 1672, 1673 585 2, Effect of notice of pendency. Sees. 167 1, 1685 591 3. When notice of pendency cancelled. Sec. 1674 . , . 598 Sections of the Code of Procedure and Where Found in THIS Chapter: SEC. ART. PAGE. 1670. Notice of pendency of action by plaintiff . i 585 1671. Effect of notice 2 591 1672. Notice to be recorded and indexed ...... i 580 1673. Notice of pendency of action by defendant i 590 1674. When and how notice may be cancelled 3 598 1685. Liability of purchaser pending an action 2 591 ARTICLE I. Contents and Filing of Notice of Pendency. §§ 1670, 1672, 1673. Sub. I. Nature and office of lis pendens. § 1670. 2. When lis pendens proper. 3. Contents of notice of pendency and amendments. 4. When and where lis pendens to be filed. § 1672. 5. Lis pendens filed by defendant. § 1673. Sub. I. Nature and Office of Lis Pendens. § 1670. § 1670. Notice of pendency of action by plaintiff. In an action brought to recover a judgment affecting the title to, or the pos- session, use, or enjoyment of, real property, the plaintiff may, when he files his complaint, or at any time afterwards before final judgment, file, in the clerk's office of each county where the property is situated, a notice of the pendency of the action, stating the names of the parties, and the object of the action, and containing a brief description of the property in that county, affected thereby. Such a notice may be filed with the complaint, before the service of the sum- mons; but in that case, personal service of the summons must be made upon a defendant, within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor as prescribed in chapter fifth of this act. It is contemplated by the provisions of the Code in reference to filing lis pendens that those whose conveyances or incum- [585] 586 I NOTICE OF PENDENCY OF ACTION. Art. I. Contents and Filing of Notice of Pendency. brances appear by the record should be made parties, in order to charge with the result of the action those holding under or through them not made parties, whose interests do not so appear at the time of such filing. Kursheedt v. Union Dime Savings Institution, ii8 N. Y. 358. The theory of the rule of '' lis pendens" is that during the pro- gress of the suit there is to be no change in the existing state of things. It is a rule of public policy and applicable only where the action is pending. It is not actual notice, but it is necessary that litigation should be binding on all parties, and its object is to bring litigation to an end and prevent the introduction of new parties. It is only applicable in cases involving title to real estate or interests therein, and it should not be applied to personal prop- erty, since commerce requires a free and unrestricted sale of such property, unburdened by the rules of lis pendens. It has always been deemed harsh in law, but wise in its limitation to real estate. In commercial transactions its hardships are apparent. Dwight, Commissioner, in Holbrook v. Nezv Jersey Zinc Co. 57 N. Y. 616. It is said in LeitcJi v. Wells, 48 N. Y. 595, that the rule of lis pendens is a harsh one and not a favorite of the courts. The theory of a lis pendens is that there must be no innovation in the proceedings so as to prejudice the rights of the plaintiff. It is a rule to give effect to the rights ultimately established by the judg- ment. Laniont v. Cheshire, 65 N. Y. 30. The filing of a notice of pendency of action is for the protec- tion of the plaintiff, and the court will not interfere to direct the filing of such a notice. Kirk v. Kirk, 12 Supp. 326. Where an action in which a notice of pendency was filed has been dismissed and the notice is canceled, it ceased to be a statutory notice to bo7ia fide purchaser of the premises described in it. Valentine v. Austin, 124 N. Y. 400. Sub. 2. When Lis Pendens Proper. Where an action is one in which the right is given the plaintiff by the Code to file a notice of pendency, the right is absolute, not resting in the discretion of the court, and if the notice is properly filed, it may not be canceled save in the manner prescribed by the Code. Bevian v. Todd, 124 N. Y. 114. The right to file a notice of pendency of action in all actions affecting the title to real estate is an absolute one. When once NOTICE OF PENDENCY OF ACTION. 587 Art. I. Contents and Filing of Notice of Pendency. filed in a proper action the court cannot order it canceled so long as the action is pending and undetermined. If filed in an action not affecting real estate, it is a nullity. Mills v. Bliss, 55 N. Y. 139. It may be filed in an action to have a debt declared a lien upon a married woman's separate real estate. Sanders v. War- ner, 2 Week. Dig. 507 ; Brainard v. White, 43 Supr. Ct. 399. In an action to avoid or cancel an assignment of a lease of lands. Wilmont v. Mescrole, 41 Supr. Ct. 274. In an action to enforce specific performance of a contract for the sale of a leasehold inter- est in lands. Ruck v. Langc, 10 Hun, 303. In an action where the complaint alleges title to a share of the property devised and to the share of the rents and profits received as an executor, and prays an accounting and adjudication as to the rights of the par- ties in the premises, and the sale and distribution of the proceeds. Kunz V. Bachuian, 61 How. 519. The rule that a lis pendc7is may be filed in any case relating to real estate is held in Little v. Ransom, 8 Abb. N. C. 159, n, and Brainard v. White, 48 Supr. Ct. 399. The right to file a lis pendens is an absolute right not depending on the discretion of the court, and a notice once filed in a .proper action can only be canceled by order of the court when the action shall be settled, discontinued or abated or final judgment rendered against the party filing the notice, and the time to appeal has expired, or where the party unreasonably neglects to proceed. Niebuhr v, Schreyer, 10 Civ. Pro. R. 72. Notice of pendency of action may be filed in ejectment. Code, § 1526. Notice of pendency is unnecessary to render a judg- ment in ejectment conclusive upon a party claiming under defend- ant by title acquired pendente lite. Sheridan v. Andreivs, 49 N. Y. 478. It has no application to commercial paper; Holbrook V. Neiv Jersey Zinc Co. 57 N. Y. 616; nor to a county bond. Lindsley v. Diefcndorf, 43 How. 357. h lis pendens is unnecessary to recover for pos.session of real property even against a pur- chaser pendente lite. It is only against mere equities that a purchaser is protected. Sheridan v. Andrews, 49 N. Y. 478; Campbell v. Hall, 16 N. Y. 579. An action is maintainable for wrongfully, maliciously and without probable cause filing a lis pendens, by which plaintiff was prevented from selling the prop- erty affected. Smith v. Smith, 20 Hun, 555. Contra, S. C. on reargument, 26 Hun, 573. In an action to recover purchase money paid under a contract 588 NOTICE OF PENDENCY OF ACTION. Art. I. Contents and Filing of Notice of Pendency. of sale of land which the vendee refuses to accept because of defect in the vendor's title, a /is pendens may be filed when the vendee prays that such money may be declared a lien on the land. BacJiiiimDi v. Wagjier, i6 Supp. ^J. After the filing of a lis pendois in an action of partition a per- son cannot obtain from a party to the action, by means of a power of sale in a will, a title superior to and which will super- sede the judgment. Shannon v. Pentrj, i App. Div. 331, 37 N. Y. Supp. 304, 72 St. Rep. 643. Sub. 3. Contents of Notice of Pendency and Amendments. The notice should describe only the property to be actually affected by the judgment, and where an attachment issues it should include only the property attached. If it includes other property, it is inoperative as to such property. Fitzgerald v. Blake, 28 How. no. It seems that a party is not required in a lis pendens to anticipate and state all the defects which may appear in the proof of another claimant of the land on the trial of any action which the latter may bring. Brozun v. Good- win, 75 N. Y. 409. K lis pendens, in an attachment case, describ- ing the property as "all the real property of defendant, or in which she may have an interest, situate in Chenango county," is a nullity. Jaffray v. Brozvn, 17 Hun, 575. The addition of one wrong initial between the Christian and surname of a party will not have the effect of relieving the purchaser of property de- scribed in notice from the presumption of having a full knowl- edge of the pendency of an action in respect thereto. Weber V. Fowler, 11 How. 458. So a lis pendens, which gives the city and ward in which a mortgage is recorded, but omits to specify the county, is a substantial compliance with the statute and is, in the absence of objections before judgment, sufficient. Potter V. Rowland, 8 N. Y. 448. Notice of pendency may be amended by inserting in the notice a specific description of a lot of land omitted by mistake. Van- derJicyden v. Gary, 38 How. 367. It may also be amended by striking out portions of descriptions of property not proper to be included in such notice. Fitzgerald v. Blake, 28 How. no. Where parties are stricken out, the safer way is to file a new notice. Ctirtis v. Hitchcock, 10 Paige, 399. If, after filing, new defendants are added, an amended notice should be filed. Curtis NOTICE OF PENDENCY OF ACTION. 589 Art. I. Contents and Filing of Notice of Pendency. V. Hitchcock, 10 Paige, 399; Clark v. Havens, Clarke's Ch. 560. An amended lis pendens filed with or after the filing of an author- ized amended summons and complaint is effectual, although the filing of the original lis pendens was irregular and ineffectual. Daly V. Bnrchell, 13 Abb. (N. S.) 264. It is within the power of the court to amend the notice by making formal corrections ; but, if new parties be added, an amended notice must be filed, at least as to the parties added. Weeks V. Tomes, 16 Hun, 34c, affirmed, 76 N. Y. 601 ; JV'aringw. Waring-, 7 Abb. 472 ; VanderJicyden v. Gary, 38 How. 367. A defect in the affidavit required may be amended, as may a clerical defect in the notice. White v. Coulter, i Hun, 357; Weber v. Fowler, 1 1 How. 458; Potter v. Rotvlajid, 8 N. Y. 448. Where it appeared that a notice of pendency affected real estate of defendant which could not possibly be affected b}- the relief sought, the court required an amendment and correction thereof as a condition of awarding plaintiff a new trial. Beavtan v. Todd, 4 St. Rep. 84. Sub. 4. When and Where Lis Pendens to kk Fti.kd. § 1672. § 1672. Notice to be recorded and indexed. Each county clerk, with whom such a notice is filed, must immediately record it, in a book kept in his office for that purpose, and index it to the name of each defendant, specified in a direction, appended at the foot of the notice, and sub- scribed by the attorney for the plaintiff. The expense of procuring a new book, when necessary, must bv, paid out of the county treasury, as other county charges. Rule 60 requires proof, on moving for judgment, of filing of a notice of pendency of action containing the names of the parties thereto, the object of the action, and a description of the property in the county affected by it, the date of the mortgage, the parties thereto, and the time and place of recording the same, at least twenty days before such application, and at or after the time of filing the complaint as required by law. See this rule under Article VI of Foreclosure. And a failure to make such proof will render the judgment irregular, but not void. Curtis v. Hitch- cock, 10 Paige, 359; Potter v. Roivland, 8 N. Y. 448. The notice has no force until the complaint is filed. Query, whether, if filed before, it becomes operative on filing complaint, or whether an amended notice should be filed. Stern v. O' Connelly 35 N, Y. 104; Leitch V. Wells, 48 N. Y. 5S5 ; Weeks v. Jones, 76 N. Y. 601 ; 590 NOTICE OF PENDENCY OF ACTION. Art. I. Contents and Filing of Notice of Pendency. Tatev. Jordan, 3 Abb. 392; Butler \. Tovilinson, 38 Barb. 641 ; Daly V. Burchcll, 13 Abb. (N. S.) 268. The commencement of an action by the service of a summons does not create a lis pendens affecting third persons not parties to the action. To bind a ^wxc:\\-dA&x pendente lite hy the judgment, there must also be a bill or complaint on file at the time of his foreclosure in which the claim upon the property is set forth. In the absence of proof it will not be presumed a complaint was filed prior to the entry of judgment. LeitcJi v. Wells, 48 N. Y. 585 ; Atkins v. Hosley, 3 T. & C. 322. The notice of pendency is wholly inoperative against incumbrancers or purchasers until the complaint be also filed. Benson v. Sayrc, 7 Abb. 472, n. ; Burroughs v. Reiger, 12 How. 171 ; Weeks v. Tomes, 16 Hun, 349; Farmers Loan & Trust Co. w Diekso)i, 9 Abb. 61 ; President D. & H. Ca?ial Co. v. Harris, 1 5 Week. Dig. 36. A substituted service of summons is equivalent to a personal service under this section — Ferris v. Plummer, 46 Hun, 515 — and is in time if made on the sixty-first day after the filing of lis pendens. Grib- bon V. Freel, 93 N. Y. 93. See Bogart v. Sweezy, 26 Hun, 463. Where the real estate and roadbed of a railroad extend through several counties and there is no proof that the complaint in the action was filed in any one of said counties, a lis pendens, if filed, would be inoperative. Cornell v. Utiea, ete. R. R. Co. 61 How. 186. Where, after filing lis pendens and service of summons upon one or more of the defendants in a suit in foreclosure, a judgment is docketed against the owner of the equity, the judg- ment creditor is bound by the judgment the same as if he were a party thereto, and this although at the time of the entry of his judgment the ^owner of the equity had not been served in the foreclosure suit. The Code gives the benefit of a notice of lis pendens where there has been due service of the summons on any defendant in the suit. Fuller v. Seribner, y6 N. Y. 190. Sub. 5. Lis Pendens P'iled by Defendant. § 1673. § 1673. Notice of pendency of action by defendant. Where a defendant sets up in his answer a counterclaim, upon which he demands an affirmative judgment affecting the title to, or the possession, use, or enjoyment of, real property, he may, at the time of filing his answer, or at any time afterwards before final judgment, file a like notice. The last three sections apply to such a notice. For the purpose of such an application, the defendant filing such a notice is regarded as a plaintiff, and the plaintiff is regarded as a defendant. NOTICE OF PENDENCY OF ACTION. 59I Art. 2. Effect of Notice of Pendency. A defendant who sets up in his answer a counterclaim on which he demands an affirmative judgment, affecting the title to or possession or enjoyment of real property is given the right by this section to file a lis pendens where the answer sets up as a counterclaim on behalf of the firm of which the defendant was a member, that plaintiff took funds of the firm and purchased therewith real property which was legally and equitably held and should be applied to the payment of certain profits alleged to be due defendant and asked judgment for the sale of the property and that the proceeds be applied to the discharge of defendant's claim, it was held that this counterclaim and the judgment demanded affected the title to real property, so that a lis pendens was proper. Niebnhr v. Sehreyer, i St. Rep. 626; S. C. 13 Daly, 546, 10 Civ. Pro. R. 72. ARTICLE 11. Effect oy Notice of Pendency. § 1671, 1685. § 1671. Effect of notice. Where a notice of the pendency of an action may be filed, as prescribed in the last section, the pendency of the action is constructive notice, from the time of so filing the notice only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed, as prescribed in the next section. A person, whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same ex- tent as if he was a party to the action. ^ 1685. Liability of pvirchaser pending an action. If the defendant, in an action of ejectment or an action for dower, aliens the real property in question, after the filing of a notice, as specified in section 1670 of this act, and an execution against him for the plaintiff's damages is returned wholly or partly unsatisfied, an action may be maintained by the plaintifif against any person who has been in possession of the property, under the defendant's conveyance, to recover the unsatisfied portion of the damages, for a lime not ex- ceeding that, during which he possessed the property. Section 1671 does not apply to defendants actually served with process, but is a statutorj^- .substitute for actual notice to sub.se- quent purchasers and incumbrancers. Parker v. Selye, 3 App. Div. 150. The doctrine applicable to lis pendens is based upon the theory of public policy, that while a suit is pending there should be no change in the existing state of things, and its pur- 592 NOTICE OF PENDENCY OF ACTION. Art. 2. Effect of Notice of Pendency. pose is to give effect to the right ultimately established by the judgment, and its office is to carry into effect rule that pending the suit nothing shall be changed. Crocker v. Lczvis, 79 Hun, 400, affirmed 144 N. Y. 140. After the filing of a lis pendens against real property, it is out of the power of the owner thereof to deprive the person filing the same of any right in such property, by an alienation thereof by mortgage or otherwise. Any person to whom such property is mortgaged subsequent to the filing of such lis pendens is bound by all the proceedings in the action wherein the lis pen- dc7is was filed, subsequent to the filing thereof, to the same extent as though he had been made a party to the action. Under § 1671 of the Code, notice of pendency, in an action to restrain the violation of a covenant restricting use of land, does not give a judgment in favor of plaintiff for costs, priority over a mort- gage on the land, given and recorded after the filing of such notice and before the rendition of such judgment. Crocker v. Lewis, ^1 St. Rep. 31, 144 N. Y. 140, 39 N. E. i, affirming 61 St. Rep. 503, 79 Hun, 400, 29 Supp. 798. As to the effect of filing lis pendens^ see elaborate discussion by Commissioner D wight, in Holbrook v. N. J. Zinc Co. 57 N. Y. 616; Lament v. C/iesliire, 65 N. Y. 30, supra. The only office of a lis pendens is to give constructive notice to, and to bind by the subsequent proceedings, those who may deal with defendant^ with respect to the property involved in the action during the pendency, and before final judgment. Sheridan v. Andrews, 49 N. Y. 478. It is a statute substitute for actual notice; Hall y. Nelson.,\\ How. 32; and is as effectual against any disposition of the property as an injunction. Stephenson v. Fayerweather, 21 How. 449. The filing of a lis pendens is merely a statutory substitute for actual notice to subsequent purchasers and incumbrancers of the existence of plaintiff's claim, and that he has commenced an action to enforce it upon the lands; whoever purchases such lands afterwards buys with notice equivalent to actual knowledge of these facts. Chapman v. West, 17 N. Y. 125; Hall v. Nelson, 23 Barb. 88. The assignee of a mortgage is affected by a notice of pendency. Hovey v. Hill, 3 Lans. 167. In an action to fore- close a mortgage, a grantee subsequent to the filing of the lis pendens is bound by all the proceedings in the action to the same NOTICE OF PENDENCY OF ACTION. 593 Art. 2. Effect of Notice of Pendency. extent as if he were a party, and his equity of redemption is cut off by the decree. Weyh v. Boylan, 63 How. 72, affirming 62 How. 397. Parties, and all in privity with them, are bound. Craig V. Ward, 3 Keyes, 387, affirming 36 Barb. 377. A pur- chaser /^;z or who have come into possession under or with the assent of such parties, and not to one who was named as defendant, and as to whom the case was dismissed. Where a writ of assistance has been improperly granted, the court should set it aside on motion. Mciggs V. Willis, 8 Civ. Pro. R. 125. The power of the court to issue the writ is superseded by an agreement between the purchaser and the party in possession to reconvey on terms, and a failure of the party in possession to comply with the terms will not give the right to the remedy. Toll V. Hiller, 1 1 Paige, 228. After sale a tenant in possession who was made a party to the foreclosure, is bound to attorn to the purchaser, notwithstanding that he holds under an unexpired lease, executed by the mortgagors prior to the mortgage, and, if he refuses, he may be removed by a writ of assistance. Lovett v. German Reformed Church, 9 How. 220. A purchaser in fore- closure, upon the production of his deed, is presumptively en- titled to possession, and upon demand thereof, and refusal, the writ of assistance is the ordinary and usual process of the court ; and whether it should be granted or withheld is in the discretion of the court. Wilbor v. Donalds, 59 N. Y. 657. The practice in ordinary cases where, by the judgment of the court, the posses- sion of land is awarded to a party, or where it is directed that a purchaser be let into possession, is to order a writ of possession or a writ of assistance, as the case may be. The former is the appropriate remedy in legal, the latter in equitable actions ; they are in substance the same. Matter of N. V. C. & H. R. R. R. Co. 60 N. Y. 116. It is said in Peck v. Knickerbocker Ice Co. 18 Hun, 183, that until the confirmation of the sale by the court it is not absolute ; it may be set aside and a resale ordered. The JUDGMENT FOR AND SALE OF REAL ESTATE. 653 Art. 8. Passing Title and Writ of Assistance. purchaser has acquired only a contingent right. Until such right becomes absolute by confirmation, it would seem to be the better practice that the purchaser ought not to have possession. This case is followed in Farmers Loan & Trust Co. v. Bankers, etc. Co. 1 1 Civ. Pro. R. 307, holding that where, upon motion to compel the delivery of property to a purchaser at foreclosure sale, it appeared the sale had not been confirmed, the motion should be denied ; that it was the safest as well as the ordinary practice to have such questions settled by the referee's report of sale and a motion to confirm the same. Clason v. Corley, 5 Sandf. Ch. 447, is cited by counsel as in point. The purchaser under a sale in foreclosure cannot be kept out of possession of the premises on a claim of want of title thereto in the mortgagor, and a writ of assistance would be granted, if necessary, to put him in possession. The court may, in the exercise of its discretion, grant the writ without notice, and such is the more usual way. Bowery Savings Bankv. Foster, 11 Week. Dig. 493. Where, after judgment and sale in foreclosure, a writ of assistance, regular and fair upon its face, is issued against one of the defendants thereon, the officer executing the same, and those acting under him, are protected thereby, even though the writ were irregularly issued, and the defendant would be entitled to have the same set aside on motion. Arrex v. Broadhead, 19 Hun, 269. Where a writ of assistance is issued, upon notice, in favor of a purchaser at foreclosure sale against a tenant in possession of the mortgaged premises, and is executed by putting the tenant in possession, it is conclusive upon the tenant upon the question of the right of possession. If the tenant had any defence, it should have been presented upon the hearing of the motion for the writ. The question whether the writ was properly awarded cannot be reviewed in a collateral action in another court. Razviszer v. Brennan, 51 How. 297. A writ of possession, upon a judgment in ejectment, can law- fully be executed after the return day; the command to return within sixty days is directory merely. See, also, as to what amounts to a due execution of the writ, Whitbeck v. Van Rensse- laer, 64 N. Y. 27. In case of a mortgagee out of possession, who is not chargeable with notice of proceedings to dispossess his mortcrasror, stronger grounds exist than for the purpose of cut- ting off his mortgage; the writ of possession should be executed by a more open, notorious and visible change of posses.sion than 654 JUDGMENT FOR AND SALE OF REAL ESTATE. Art. 8. Passing Title and Writ of Assistance. in case of a tenant or defendant in the judgment. The ordinary rule is that the plaintiff must be put into full and complete pos- session, and it must be full and actual; the mere reaching into a house, without entry, and taking a chair and setting it outside, is not such an execution of a writ of possession as is required to bar such mortgagee out of possession. A sheriff's return to a writ of possession is not conclusive as to its execution. Distinguishing Whit beck V. Van Rensselaer, 64 N. Y. 27, supra, Newell v. Whig- ham, 102 N. Y. 20; S. C. I St. Rep. 666. But the purchaser having been put in possession, the court does not undertake to always guard his possession and that of his grantee. Betts v. Birdsall, 1 1 Abb. 222. The general rule is, that where a judgment, order or decree has been reversed or vacated, restitution will be made of all property and rights which have been lost by reason of it ; the case of vacating a writ of assistance forms no exception to this rule. Chamberlain v. Choles, 35 N. Y. 477. The writ of assistance has not been abolished by the Code nor has a substitute been provided for it, and except where the judg- ment can be enforced by execution, the writ is still an appropri- ate remedy in the enforcement of mechanic's lien. Connor v. ScJiaeffel, 19 Civ. Pro. R. 378, 33 St. Rep. 143. A court of equity has authority to decree the possession of land where a con- troversy regarding the title thereto has been properly brought within its jurisdiction, and the law will enforce its decree for the delivery of actual possession. Kershazv v. Thompson, 4 Johns. 609; Valentine v. Teller, Hopk. Ch. 422; Bolles v. Duff, 43 N. Y. 469. A purchaser is entitled to possession on compliance with the terms of sale and will not be driven to an action at law to obtain possession. Ludlow v. Lansing, Hopk. Ch. 231 ; Valentine v. Teller, Hopk. Ch. 422; Kershaw v. Thompson, 4 Johns. Ch. 609; Frelinghuysen v. Colden, 4 Paige, 204. But not where the party in possession was not a party to the action and did not acquire his possession from the party who was bound by the decree. Boynton v. Jackivay, 10 Paige, 307; Meiggs v. Willis, 8 Civ. Pro. R. 125. Except in cases where the decree does not contain an order for the surrender of the premises to the purchaser, a writ of assist- ance cannot be granted until such order has been obtained upon notice to the party occupying the property after a demand for the JUDGMENT FOR AND SALE OF REAL ESTATE. 6$$ Art. 8. Passing Title and Writ of Assistance. possession. Ljnde v. McDonald, 12 Abb. Pr. 286; N. V. Life Ins. & Trust Co. v. Rand, 8 How. 35, 352. The court will award a writ of assistance as against all persons who are parties to the suit or who come into possession under it while it was pending, and will not remove persons who went into possession after the purchaser had received his deed and conveyed the premises to another. Bell v. Birdsall, 19 How. 491; Belts w. Birdsall, 11 Abb. Pr. 222. A writ of assistance is the proper process to place in possession a purchaser of mortgaged premises under its decree of sale. Kershazv v. Thompson, 4 Johns. Ch. 609; Terrell v. Allison. 88 U. S. 291. This will be granted on proof that he has exhibited his deed to the person in possession and demanded possession. Kershaw v. Thompson, 4 Johns. Ch. 609; Battershall v. Davis, 23 How. 83; Van Hook v. Throckmorton, 8 Paige, 33; Frcling- hiiysen v. Colden, 4 Paige, 204. Notice of application for the writ is unnecessary. Lynde v. O' Donnell, 21 How. 39; N. Y. Life Ins. &■ Trust Co. v. Rand, 8 How. 35 ; Valentine v. Teller, Hopk. Ch. 422. The purchaser must be put into full and complete possession under a writ of possession, but it will not be regarded as properly and sufficiently executed until the sheriff and his officers have left the purchaser in settled and quiet possession. Newell v. Whigham, 102 N. Y. 20, i St. Rep. 666, reversing 29 Hun, 204. Where the writ has been improperly granted, the person dispos- sessed will be restored to possession. Chamberlain v. Choles, 35 N. Y. 477; Mciggs v. Willis, 8 Civ. Pro. R. 125. After entry of a decree of sale and death of the referee, the court may make an order providing for carrying same out after the death of the defendant mortgagor and without reviving the action. Wing v. Dc La Rionda, 125 N. Y. 678, 34 Supp. 267. The purchaser in a foreclosure sale is entitled to all the rents from the day of the delivery of the deed. Cowen v. Arnold, 58 Hun. 437, 35 St. Rep. 134, 12 Supp. 601. A decree in fore- closure is not outlawed after twenty years; it is for the court to determine whether it shall be enforced. Wing v. De La Rionda, 34 St. Rep. 267. 656 JUDGMENT FOR AND SALE OF REAL ESTATE. Art. S. Passing Title and Writ of Assistance. Affidavit for Writ of Assistance. SUPREME COURT — County ok Ulster. THE ULSTER COUNTY SAVINGS INSTI- TUTION agst. JOSEPH SCHOONMAKER and Others. -Title same as in summons. Ulster County, ss.: James H. Vandemark, of the town of Rosendale, in said county, being duly sworn, says: That on the 4th day of March, 1876, he attended a sale of the premises described in the complaint in the above-entitled action, and which premises are also described in the judgment herein on the 14th day of January, 1876, at Ulster Special Term, which judgment-roll, or a copy thereof, is referred to as part of these moving papers; that such premises were sold by Alton B. Parker, Esq., as referee, and that they were struck off and sold to this deponent, he being the highest bidder therefor, for the sum of $3,700; and that on the 14th day of March, 1876, he, this de- ponent, received, according to the terms of sale, having complied therewith, a deed of the premises, which is also made part of the moving papers herein; that on the said 14th day of March, 1876, this deponent went upon the premises so purchased by him, and found Maria Arrex, a party to this action, as appears by the papers herein, in possession of a part of the dwelling-house situate on said premises; that deponent exhibited to said Maria Arrex his said deed, and demanded possession of the premises; that said Maria Arrex refused to give up possession of the premises, claiming that she had possession under her deed; that deponent demanded such possession, and stated to said Maria Arrex that he demanded pos- session under his deed, which he there produced, and said Maria Arrex refused to deliver such possession; that said deed recites the fact that said Maria Arrex was a party to this action, and sets forth proceedings therein. Wherefore deponent asks the aid of this court in the matter, and a writ of assistance against such Maria Arrex, or such proper and appropriate remedy as shall be just and according to the law and practice in such case. JAMES H. VANDEMARK. Subscribed and sworn before ) me, March 15, 1876. f Wm. L. Conklin, Notary Public. JUDGMENT FOR AND SALE OF REAL ESTATE. 657 Art. 8. Passing Title and Writ of Assistance. Order for Writ. At a Special Term of the Supreme Court, held at Chambers, in the village of Catskill, in and for the State of New York, on the 20th day of March, 1876. Present — Hon. A. M. Osborn, Justice. SUPREME COURT — County of Ulster. THE ULSTER COUNTY SAVINGS INSTI- TUTION agst. JOSEPH SCHOONMAKER and Others. ► Title same as in summons. On reading and filing the judgment in foreclosure in this action, granted at Ulster Special Term on the 14th day of February, 1876; the referee's deed to James H. Vandemark, dated March 4, 1876; the report of sale of A. B. Parker, the referee, dated and filed in Ulster county clerk's office March 20, 1876, and the affidavit of James H. Vandemark, verified March 15, 1876, by which it appears that a judgment of foreclosure and sale of the premises described in the complaint in this action and in the said judgment was duly granted, and the premises therein described directed to be sold under the direction of Alton B. Parker, Esq., as referee; that after due notice of the time and place of such sale, the said premises were sold to James H. Vandemark, and a deed thereof executed and delivered to said Vandemark by said referee; that the said pur- chaser, after receiving such deed, demanded possession of said premises, and produced his said deed to one Maria Arrex, a party defendant to this action, who was in possession of the premises; that said Maria Arrex refused to deliver or give up possession of the premises to the said purchaser: Now, on motion of C. A. & E. Fowler, attorneys for James H. Vandemark, the purchaser of said premises as aforesaid, it is Ordered, that a writ of assistance issue out of and under the seal of this court to the sheriff of the county of Ulster, commanding and directing him to forthwith enter upon said premises, described fully and at large in the complaint, judgment and report of sale in this cause on file in Ulster county clerk's office; and that he, the said sheriff of Ulster county, eject and remove therefrom the said Maria Arrex, and any of the parties defendant in this action who may be in possession of said premises, or any part thereof, and any person who since the commencement of this action has come into the pos- session of said premises, or any part thereof, under him or them, and detains the same, or any part thereof, against the said James H. Vandemark, and that he put the said James H. Vandermark, or his assigns, in the full, peaceable and quiet possession of the said premises, without delay, and that he maintain him, the said James H. Vandemark, in such possession from time to time, or cause him to be kept, maintained and defended in such possession from time to time, according to the tenor and intent of .'^aid judgment. [Special Actions — 42.] 658 JUDGMENT FOR AND SALE OF REAL ESTATE. Art. 8. Passing Title and Writ of Assistance. Writ of Assistance. The People of the State of New York, to the sheriff of the county of Ulster, greeting : Whereas, on the 14th day of January, 1876, by a judgment recovered in our Supreme Court of the State of New York, in an action then depending in said court, wherein the Ulster County Savings Institution is plaintiff and Joseph Schoonmaker and others (title same as in summons) are defendants, it was, among other things, adjudged that all and singular the mortgaged premises men- tioned in the plaintiff's complaint in said action be sold at public auction by or under the direction of Alton B. Parker, referee thereby appointed for that purpose; and also that the purchaser or purchasers at such sale be let into possession of the premises on production of the referee's deed. And, whereas, the said Alton B. Parker, referee, has duly filed his report of said sale, from which report it appears that the premises hereinafter described were sold to James H. Vandemark, and that the referee's deed has been executed, acknowledged and delivered to the said purchaser, James H. Vandemark, and the said James H. Vandemark has not been let into nor taken possession of said premises or any part thereof, according to the tenor of the judgment of the said court, notwithstanding the said James H. Vandemark has produced and shown to Maria Arrex, a person who is in posses- sion of a part of the premises so sold and hereinafter described, the said deed of the premises, in pursuance of said judgment: Therefore we command you that you forthwith enter upon said premises, which are described as follows, to wit: (Here follows description of premises as in complaint.) And that you eject and remove therefrom the said Maria Arrex and any of the parties defendant in this action who may be in pos- session of said premises, or any part thereof, and any person who, since the commencement of this action, has come into the posses- sion of said premises, or any part thereof, under him or them, and detains the same, or any part thereof, against the said James H. Vandemark, and that you put the said James H. Vandemark, or his assigns, in the full, peaceable and quiet possession of the said premises without delay, and him, the said James H. Vandemark, in such possession thereof from time to time maintain, keep and defend, or cause to be kept, maintained and defended, according to the tenor and true intent of said judgment. Witness Hon. A. Melvin Osborn, one of the justices of our [l s] Supreme Court, at Catskill, this 20th day of March, 1886. P. D. LE FEVER, C. A. & E. Fowler, Clerk. Attorneys for purchaser. The writ should be indorsed "granted by the court," which indorsement should be signed by the justice granting the order. JUDGMENT FOR AND SALE OF REAL ESTATE. 659 Art. 9. Effect of Judicial Sale. ARTICLE IX. Effect of Judicial Sale. A judgment directing a sale conclusively determines, as be- tween the parties, not only the necessity and propriety of the sale, but the place and manner of sale. Winter v. Eckert, 93 N. Y. 367. A purchaser at a foreclosure sale is entitled to receive a deed from the referee, irrespective of the rights of a third party, under an alleged contract by such purchaser to recover upon certain terms. Belter v. Lyon, 2 St. Rep. 505. A bona fide purchaser acquires no title as against the owner of the property at a sale under a void process, and stands in no better position than one purchasing with knowledge of the invalidity. Place V. Whittaker, 98 N. Y. i. As to effect of sale in partition, see that title, § 1557, and cases cited; as to effect of sale in fore- closure, see that title, § 1632, and cases cited. CHAPTER XII. MISCELLANEOUS PROVISIONS RELATING TO REAL ESTATE ACTIONS. PAGE. Article i. Survey, when ordered. Sees. 1682, 1683, 1684.... 660 2. When infant may maintain action as to real estate in his own name. Sec. 1686 661 3. Joinder of actions and when special proceedings not allowed as to real estate. Sees. 1687, 1688.. 662 4. When heir can maintain ejectment after default by tenant for life. Sec. 1680 663 Sections of the Code of Procedure and Where Found in THIS Chapter. SEC. ART. PAGE. 1680. Reversioner, etc., may bring action after tenant's default 4 663 1682. When order for survey may be made I 660 1683. Contents and service of order I 660 1684. Authority of party under order I 660 1686. Infant may maintain, etc., real action in his own name 2 661 1687. Joinder of real actions with others 3 662 1688. When special proceedings to recover real property not allowed. 3 662 ARTICLE I. Survey, When Ordered. §§ 1682, 1683, 1684. § 1682. When order for survey may be made. If the court, in which an action relating to real property is pending, is satisfied that a survey of any of the property, in the possession of either party, or of a boundary line between the parties, or between the property of either of them> and of another person, is necessary or expedient, to enable either party to pre- pare a pleading, or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in posses- sion, make an order, granting to the applicant leave to enter upon that party's property, to make such a survey. § 1683. Contents and service of order. An order, made as prescribed in the last section, must specify, by a description as definite as may be, the property or boundary line to be surveyed, and the real property of the adverse party, upon which it is necessary to enter for that purpose. A copy thereof must be served on the owner or occupant of that property, before entry thereupon. § 1684. Authority of party under order. After serving a copy of the order, as prescribed in the last section, the party obtaining it, his necessary surveyors, servants, and agents, may enter, for the [660] MISCELLANEOUS PROVISIONS RELATING TO REAL ESTATE. 66l Art. 2. When Infant may Maintain Action as to Real Estate in His Own Name. purpose of making the survey, upon the real property described in the order, and may there make the survey; but each person so entering is responsible for any unnecessary injury done by him; and the party procuring the order is re- sponsible for such an injury, done by any person so entering. The note to hear v. Burstcin, 30 Abb. N. C. 71, cites statutes of the State with regard to surveyor's oath to standards and a number of cases in other States treating upon surveys as evidence. In the case cited the parties stipulated before trial to allow the court to appoint a competent disinterested surveyor to examine the premises, and thai his report should be conclusive as to the disputed boundary, and it was so held. The language of § 1682 is applicable to all actions relating to real property, and its provisions being unambiguous, are not limited by the title of article 9 of title i of chapter 14 of part 2 of the Code. An action brought to recover damages for an alleged unlawful entry on plaintiff's premises by means of a tunnel sunk into the ground on an adjoining lot, and for a severing and removinfr valuable material from the soil thereof, beneath the surface of plaintiff's land, is under the provisions of this section. The court may grant the applicant leave to survey any of the property in possession of the opposite party, and in a proper case, direct a survey of the defendant's premises through a tunnel under the surface as well as upon the surface. Hozues Cave Lime & Cement Co. v. Howes Cave Ass 11, 88 Hun, 556. ARTICLE II. When Infant May Maintain Action as to Real Estate IN his OWN Name. § 1686. g 1686. Infant may maintain, etc., real action in his own name. Any action specified in this title may be maintained by or against an infant in his own name; and article fourth of title second of chapter fifth of this act applies to such an action, except as otherwise prescribed in sections 1535 and 1536 of this act. It is said in Segelken v. Meyer, 94 N. V. 4/3. that the object of this section is to abolish the rule in Scaton v. Davis, i T. & C. 91, and Cagger v. Lansing, 64 N. Y. 417, and to assimilate real actions to the practice establi-shed by the Code. Section 1686 should be read in connection with !i 1638, but as so read does not give a right of action, but only provides that an action may be maintained by or against an infant where the right 662 MISCELLANEOUS PROVISIONS RELATING TO REAL ESTATE. Art. 3. Joinder of Actions and when Special Proceedings not Allowed. of action is given by other provisions of the title. Wciler v. Ncmbach, 114 N. Y. 36. See, however, the amendment of 1891 to § 1638. An action to compel the determination of a claim to real prop- erty is not maintainable against an infant. This section does not give a right of action such as to enable it to be brought against an infant. Weilcr v. Nembach, 114 N. Y. 36, affirming 13 Civ. Pro. R. 380. A judgment in an action brought by a general guardian where, from the title of the action and averments of the complaint, it is evident the action is brought solely on behalf of the infant, and where the recovery is for his benefit, in the absence of fraud or collusion, is binding upon the infant. Carr v. Huff, 57 Hun, 18; s. c. 10 Supp. 361, 32 Rep. 26. As a general rule, actions brought by an infant should be brought in the name of the infant by a guardian ad litem and not in the name of his general guardian. The objection that a gen- eral guardian of an infant cannot sue in behalf of his ward, for injury to his ward's estate, is one going to his legal capacity and not to the existence of a cause of action, and if it appears on the face of the complaint, is waived if not taken by demurrer. Per- kins V. Stimniel, 17 Civ. Pro. R. 25 (Ct. of App. 2d Div.), reversing 42 Hun, 520. The general guardian of an infant, to whom, as such, mortgage has been assigned, may sue to foreclose the same without joining the infant, notwithstanding this section. Such guardian is within the statute allowing the trustee of an express trust to sue without joining with him the person for whose benefit the action is prosecuted. A guardian buying in property at such a sale need not apply to the court for leave to sell. Bayer v. Phillips, 17 Abb. N. C. 425. ARTICLE ni. Joinder of Actions and When Special Proceedings not Allowed as to Real Estate, §§ 1687, 1688. § 1687. Joinder of real actions with others. Nothing contained in this title is to be construed, as to prevent the plaintiff from uniting in the same complaint two or more causes of action, in any case specified in section 484 of this act. ^ 1688. When special proceeding to recover real property not allowed. A special proceeding to recover real property cannot be taken, except in a case specially prescribed by law. MISCELLANEOUS PROVISIONS RELATING TO REAL ESTATE. 663 Art. 4. When Heir can Maintain Ejectment after Default by Tenant for Life. ARTICLE IV. When Heir Can Maintain Ejectment after Default by Tenant for Life. § 1680. § 1680. Reversioner, etc., may bring action after tenant's default. Where a tenant for life, or for a term of years, suffers judgment to be taken against him, by consent or by default, in an action of ejectment, or an action for dower, the heir or person owning the reversion or remainder, may, after the determination of the particular estate, maintain an action of ejectment to re- cover the property. This section would seem to properly belong under ejectment and it is inserted under Article IV, subd. 4, of that title. CHAPTER XIII. MECHANIC'S LIENS.* (Chapter 342, Laws 1885, as amended.) PAGE. Article i. Nature and extent of the remedy , 664 2. By and against whom, and in what cases lien ac- quired. Sec. 1 666 3. Notice of lien and filing. Sec. 4 678 4. Priority of liens and rights of sub-contractors. Sees. 5, 20 684 5. Payments in advance and demand upon owner for terms of contract. Sees. 2,3 690 6. Discharge of lien. Sec. 24 691 7. Construction of statute and repealing clause. Sees. 25, 26 694 8. Foreclosure of liens. Sees. 6-19, 21, 22, 23 695 9. Liens against municipal property under contract. . 723 10. Liens on railroads, oil, gas or water wells and cemetery structures 734 ARTICLE I. Nature and Extent of the Remedy. The lien of a mechanic is a claim created by law for the pur- pose of securing a priority of payment of the price and value of work performed and materials furnished in erecting a building, and as such it attaches as well to the buildings erected thereon. It is a peculiar and special remedy given by statute founded and circumscribed by the terms of its own discretion. American and English Ency. of Law, vol. 15, page 5. The mechanic's lien is a particular statutory charge upon real estate, given for the security of persons improving it by their labor or materials. Kneeland on Mechanic's Liens, page 8. It is exclusively the creature of the statute. Grant v. Vandercook, 8 Abb. (N. S.) 455, 57 Barb. 165; Hiixford v. Bogardus, 40 How. 94; Benton v. Wickzvire, 54 N. Y. 226. *The law and practice on Mechanic's Liens in New York is given Snyder's Mechanic's Lien Law of New York and Derby's Mechanic's Lien Law of New York. The subject is very fully treated in Phillips' Mechanics Liens and Jones on Liens. [664] mechanic's lien. 665 Art. I. Nature and Extent of the Remedy. The design of the statutes relative to mechanic's liens is to give security to those who, by their labor, skill and materials, add value to property, by a pledge of the interest of their employer for their payment and to subordinate other interests to that end. David V. A Ivor d, 94 U. S. 945. The remedy is substantially a proceeding z« rem so far as it undertakes to subject a specific property to the enforcement of the debt secured by the lien. Grant v. Vafidercook, 57 Barb. 165; Randolph v. Leary., 3 E. D, Smith, 637; Qiiinby v. Sloan, 2 Abb. 93. The foundation of the claim is an indebtedness exist- ing upon contract, express or implied, in favor of the person who seeks to subject the property to the lien. Knapp v. Broivn, 45 N. Y. 207; Muldoon v. Pitt, 54 N. Y. 269; Cornell v. Barney^ 94 N. Y. 394. The interest obtained through the lien may be assigned. Smith v. BaiUy, 8 Daly, 128. It differs from the lien of a judgment in that it affects only the real estate on which the work is done. Freeman v. Cram, 3 N. Y. 305. Both tlic land and the buildings thereon are subject to the lien. Myres v. Ben- nett, 7 Daly, 471. An equitable as well as a legal estate are bound by it. Belmont v. Smith, i Duer, 675 ; Rollins v. Cross, 45 N. Y. 'j66; MusJilitt v. Silverman, 50 N. Y. 360; Benton v. Wickwire, 54 N. Y. 226; Freeman v. Cram, 3 N. Y. 305; Hn/f- dell V. Schreycr, 15 Abb. (N. S.) 300. Diigan v. Brophy, 55 How. 151, and Cheney v. Troy Hospital Assn, 65 N. Y. 282, so far as they hold that the remedy is in derogation of the common law and the statute, and must be strictly construed, seem to be rendered obsolete by the express provisions of the statute that it is to be construed "liberally to secure the beneficial interests and purposes thereof." But it is held in Spriick v. McRobcrts, 139 N. Y. 193. that while a mechanic's lien law must receive a liberal construction to secure the beneficial purpose had in view by the Legislature, yet as it creates a remedy not known to the common law, it may not be extended to cases not fairly within its general scope and purview. There is no constitutional objection to mechanic's lien law. Glacins v. Black, Gj N. Y. 563. The lien law is not to be deemed unconstitutional upon the ground that if enforced against a subsequent purcha.ser it will deprive him of property without due process of law. Blauvclt v. Woodworth, 3 1 N. Y. 285. The mechanic's lien law does not affect (i66 mechanic's lien. Art. 2. By and Against Whom and in What Cases Lien Acquired. a contract, but provides a new remedy. Houptman v. Catliti, 20 N. Y. 247. Mechanic's lien laws give a personal right to a mechanic, materialman and laborer for his own personal protec- tion. Rollin V. Cross, 45 N. Y. 766. Proceedings to impose and enforce mechanic's liens rest entirely upon the statute, and the court cannot supply supposed defects. Benton v. Wickwire, 54 N. Y. 226. A micchanic's lien cannot be enforced against the real estate of a municipal corporation held for public use except under an ex- pressed statutory authority. Leonard v. City of Brooklyn, 71 N. Y. 498. The lien of a mechanic is a remedy in the nature of a charge on land given by statute to the persons named therein, to secure a priority or preference of payment for the performance of labor or supply of materials to buildings or other improvements to be enforced against the particular property in which they have become incorporated in the manner and under the limitations therein expressly provided. Phillips on Mechanic's Liens, § 9. The filing of a lien does not give a right to have a receiver appointed pending action to foreclose. Meyer v. Seebald, ii Abb. 326. The right to file a mechanic's lien terminates with the death of the owner, and so for work done prior to such death under a contract made with the owner, the contractor cannot acquire a lien by filing notice thereof after his death. Tnbridy v. Wright, 144 N. Y. 519, affirming 7 Misc. 403; citing Crystals. Flannelly, 2 E. D. Smith, 583; Meyers v.Bemiett, 7 Daly, 471 ; Brown v. Zeiss, 9 Daly, 240; Leavy v. Gardner, 63 N, Y. 624, ARTICLE IL By and Against Whom and in What Cases Lien Ac- quired, § I. g 1. [Am'd, Chap. 673, Laws of 1895.] How and by whom lien acqviired. Any person or persons, firm or firms, corporation or association who shall hereafter perform any labor or service, or furnish any materials, which have been used or which are to be used in erecting, altering or repairing any house, wharf, pier, bulkhead, bridge, vault, building or appurtenances to any house, building or building lot, including fences, sidewalks, pavings, fountains, fish ponds, fruit and ornamental trees, or who shall dredge, fill in, grade or other- wise alter or improve land under water, meadow, marsh, swamp or other low lands, or who shall hereafter perform any labor or services, or furnish any materials which have been used in improving or equipping any house, building or appurtenances with any chandeliers, brackets or other fixtures or apparatus mechanic's lien. 667 Art. 2. By and Against Whom and in What Cases Lien Acquired. for supplying gas or electric light, with the consent of the owner, as hereinafter defined, or his agent or any contractor, or sub-contractor, or any other person contracting with such owner to erect, dredge, fill in, grade, alter, repair, im- prove or equip as aforesaid, within any of the citi.es or counties of this State, may upon filing the notice of lien prescribed in the fourth section of this act have a lien for the principal and interest of the price and value of such labor, services, and material upon such house, wharf, piers, bulkheads, bridges, vault, building or appurtenances, and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, or which is graded, dredged or filled in, to the extent of the right, title and interest at that lime existing of such owner, whether owner in fee or of a less estate, or whether a lessee, for a term of years, or vendee in possession under a contract existing at the time of the filing of said notice of lien, or of the owner of any right, title or interest in such estate, which may be sold under an execution under the general provisions of the statutes in force in this State relating to liens of judgment and enforcement thereof, and also to the extent of the interest which the owner may have assigned by a general assignment for the benefit of creditors, within thirty days prior to the time of filing the notice of lien specified in the fourth section of this act. But in no case shall such owner be liable to pay by reason of all the liens filed pursuant to this act, a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or, in case there is no contract, then the amount of the value of such labor and material then remaining unpaid except as hereinafter provided. Sub. I. By whom lien m.a.y be filed. 2. ag.4inst whom lien may be filed. 3. to what property lien attaches. 4. Miscellaneous provisions as to validity of liens. Sub. I. By Whom Likn may be Filed. The only limitation to the right of a minor to file a lien seems to arise upon the fact that the lien is dependent upon the exist- ence of a contract, but as the disability of the minor is a per- sonal privilege, his minority is of little avail as a defence to his lien where a party has received his services or materials. J 'a/! Bramer v. Cooper, 2 Johns. 279; Gates \. Davenport, 29 Barb. 160; WhitemarsJi v. Hall, 3 Den. 375. The language of the act is very broad and there is no limitation in its language or any good reason for reading one into it by which the mechanic is required to be a resident of the State and to make his contract here. If the materials have been furnished and used in the erection of a building within the State, the right of the materialman to a lien follows if the other statutory provi- sions are complied with. Campbell v. Coon, 149 N. Y. 556, reversing 8 Misc. 234. 668 mechanic's lien. Art. 2. By and Against Whom and in What Cases Lien Acquired. When plaintiff and his partner had contracted to do work in a building and the partner retired from the firm before the work was completed, assigning the assets of the firm to plaintiff, it was held plaintiff was entitled to file a lien. Ogden v. Alexander, 63 Hun, 56, 43 St. Rep. 829, 17 Supp. 641. Parties furnishing labor or materials under a general employ- ment may acquire a lien therefor. Smith v. Coe, 2 Hilt. 365. A mechanic's lien can include only labor and materials furnished by the lienor or by others employed by him, and not materials or labor procured by him as the agent for defendant and in his name and on his credit, although afterward actually paid for by the lienor. Kerby v. Daly, 45 N. Y. 84. Where a contract imposed on the builder the duty of removing rock preparatory to laying foundation walls, powder and fuse furnished, necessary for blast- ing the rock, must be classed as materials within the meaning of the lien law. Hazard Powder Co. v. Burns, 21 How. 189, 12 Abb. 469. The lien of a materialman cannot be affected by a subsequent arrangement between the owner and contractor. Jeiiks v. Broivn, 66 N. Y. 629. One who furnished materials to the contractor is entitled to the amount due him on filing a lien, although the con- tractor abandoned the work, when the owner finished it under a clause giving him the right to do so, and to charge the expense to the contractor. Crawford v. Becker, 13 Hun, 375. But where the owner before the filing of the lien by a materialman, paid the contractor in pursuance of the contract for all that he had done, and the latter made default and abandoned the contract, the owner is not liable. Crainv. Genin, 60 l^.Y . 127. A material- man who has furnished materials and the contractor can create no valid lien on the premises unless something is due from the owner to the contractor. Dart v. Fitch, 23 Hun, 361. Joint contractors who agree to divide the work upon the con- tract between them, each to receive payment for the portion per- formed by him, thereby become sub-contractors and each is entitled to file a separate lien for the amount due him. Strobelv. Osche, 14 Misc. 522, 35 N. Y. Supp. 1089, 70 St. Rep. 707. Where a contractor by a provision on his contract waives his right to file a mechanic's lien, any party interested may demand a strict performance of the contract. Matthezvs v. Yon?ig, 16 Misc. 525. An architect is not entitled to file a mechanic's lien asrainst premises based simply upon services rendered and the production mechanic's lien. 669 Art. 2. By and Against Whom and in What Cases Lien Acquired. of plans and specifications. He is, however, entitled to a lien for expenses incurred about the construction of the building. Rinn V. Electric Power Co. 3 App. Div. 305. It was held under the Laws of 1875 that a materialman could acquire a lien only to the extent of the sum due from the owner to the contractor at the time of fiUng the Hen and that if the owner had before that time, at the request of the contractor, accepted his orders in favor of other creditors, such acceptance constituted payment to that extent and defeated the lien. Gibso7i V. Lenane, 94 N. Y. 183. Under the Laws of 1873 it was held that the consent of the owner in making the erections and improvements upon real estate was sufficient to give a lien, and that it was not necessary he should contract directly for them. Otis V. Dodd, 90 N. Y. 336. Sub. 2. Against Whom Lien may be Filed. Under the provisions of § i, that any person performing labor, etc., "with the consent of the owner," as therein defined, may, upon filing notice, have a lien, and that where the owner of the premises "has made an agreement to sell and convey to the con- tractor or other person, such owner shall be deemed to be the owner " until the deed has been delivered and recorded ; where an owner has contracted to sell and advance moneys to enable the purchaser to build, which the latter agrees to do, title of the land not to pass until the completion of the building, the purchaser agreeing to give a mortgage on the land for the purchase-price and the moneys advanced ; it is not necessary-, in order to sustain a lien for work or materials used in the building, to show an express consent of the owner; the contract itself, and the fact that the work was prosecuted under it with his knowledge, authorize a finding of consent. The lien of a mechanic or mate- rialman in such case is not limited to so much of the sum as the owner agreed to advance, which had not been advanced at the time of filing the notice of lien, but is for the whole of the unpaid indebtedness to the lienor, and where such a contract was made for the benefit of tiie owner, a married woman, by her husband in his own name, but was soon after its execution assigned to her and she made the advances of money as .stipulated, held, that a mechanic's lien could be acquired under the act as against her. Schmalz v. Mead, 125 N. Y. 188. distinguishing Loonie v. Hogan, 670 mechanic's lien. Art. 2. By and Against Whom and in What Cases Lien Acquired. 9 N. Y. 435, and citing Hackctt v. Bademi, 6}, N. Y. 476; Hustedv. Mat/us, 77 N. Y. 388; Nellis v. Be/linger, 6 Hun, 560; Otis V. Dodd, 90 N. Y. 336, It is further held in the principal case that it would be manifestly unjust to permit the owner to enjoy the benefits from the enhanced value of the land without liability for any part of the .labor or material which produced them, citing Rollm v. Cross, 45 N. Y. 766; Biirkitt v. Harper, 79 N. Y. 273. Schmalz v. Mead, was distinguished and explained in Miller v. Mead, 127 N. Y. 544. In Coiven v. Paddock, 137 N. Y. 188, 50 St. Rep. 386, it is held that while the consent required by § i of this act, in order to make the owner liable for work done or materials furnished in the improvement of his premises, need not be expressly given but may be implied from the conduct and attitude of the owner with respect to such improvements, the facts from which the inference of a consent may be drawn must be such as to indicate a willing- ness on his part to have the improvements made or an acquies- cence in the means adopted for that purpose with knowledge of the object for which they were employed. Under this act the incumbrance is imposed upon real estate only when the work is performed or materials furnished in pur- suance of some contract with the owner or when his consent is in some way established ; when a mechanic or materialman proposes to expend labor or material upon land under a contract with the person in possession, it is incumbent upon him to inquire and assure himself of the fact that such person has in fact, such an estate or interest in the land as will enable him to assert the statutory lien ; if the person in possession has no such interest, the statute does not impose a lien upon the estate of the true owner unless he is in some way connected with the contract or has given his consent to the expenditure in such a manner as to bind him within the recognized principles of equity. Spriuk v. McRoberts, 139 N. Y. 193, 54 St. Rep. 461. The same rule is held in Stei'ens v. Ogden, 130 N. Y. 182; McCorkle \. Herrman, 117 N. Y. 297. Consent of the owner to the furnishing of work and materials is sufficient without regard to the existence of a written contract. Marshall V. Coheti, 11 Misc. 397; 32 Supp. 282; 65 St. Rep. 310. Consent of the owner may be predicated on his agreement with the lessee by which the latter undertakes to make improvements mechanic's lien. ^ 671 Art. 2. By and Against Whom and in What Cases Lien Acquired. and repairs at hi.s own expense. Moshcr v. Lewis, 10 Misc. 373, 31 Supp. 433, 64 St. Rep. 117. To render the lien effectual to charge the land, it must appear affirmatively either that the work was done or materials furnished at the request of the owner or his agent, or of the person contracting with the owner; in the absence of proof of such request or consent the owner's interest in the land is not chargeable. Rossi w. MacKellar, 13 Supp. 827, 37 St. Rep. 503. The Legislature in authorizing a lien where the claim of the laborer or materialman arose at the owner's request, intended to enforce the equitable principle that one who knowingly takes the benefit of the property or labor of another in the form of improvements made on his land, ought to have the land sub- jected to the Hen, and the doctrine of consent extends to cases where an owner, by his acts and declarations, impliedly consents to the erection of buildings on his land. Nellis v. Bellinger, 6 Hun, 560; Otis v. Dodd, 90 N. Y. 336. And the consent of the owner will be implied if it appears that the work proceeded with his knowledge and approval. Helkvig v. Blumcnbcrg, 7 Supp. 746; Husted v. Mathes, -jy N. Y. 389; Kcalcj v. Murray, 15 Supp. 403, 40 St. Rep. 23. Where a vendor agrees with the vendee that the latter shall erect buildings on the land, it is an implied consent by the owner of the fee that the materials for such building may be furnished and the labor necessary in their construction may be performed. Hackett v. Badeau, 63 N. Y. 476. See, also. Hart v. Wlicilcr, i T. & C. 403 ; Nellis v. Bellinger, 6 Hun, 560; Gates v. Wliitcomb, 4 Hun, 137. The consent of a married woman will be inferred when having knowledge of the fact that improvements arc being made on her lands by her husband, she interposed no objection. Husted V. Mathes, jj N. Y. 389; Schmah v. Mead, 125 N. Y. 188. Where the owner agrees to sell to a builder, make a builder's loan and take a mortgage on completion, at which time he is to give a deed, he thereby consents to the improvement by the builder; while he retains title the property is bound by a me- chanic's lien for work and materials furnished by the builder. Hobby V. Day, 22 St. Rep. 92, 3 Supp. 900. Where the owner completes the work according to the terms of the contract, the contractor having abandoned it, the liens of materialmen attach to any balance of the contract price remaining after deducting 6/2 mechanic's lien. Art. 2. By and Against Whom and in What Cases Lien Acquired. the amount paid to the contractor and the expense of completing the work. McKee v. Rapp, 69 St. Rep. 291, 35 Supp. 175 ; follow- ing Ogden V. Alexander, 140 N. Y. 356. Although nothing is due a contractor where a lien is filed by a sub-contractor, and the contractor abandons the work; if the owner completes the building according to the contract and under a provision authorizing him so to do, the lien of the sub- contractor attaches to the extent of the difference between the cost of completion and the amount unpaid to the contractor when the lien was filed. And in such case an architect's certifi- cate is not necessary to enable the sub-contractor to enforce the lien, although required by the original contract between the owner and contractor. Campbell v. Coon, 149 N. Y. 556, reversing 8 Misc. 234, following Van Clief\. Van Vechten, 130 N. Y. 571, distinguishing Birmingham Foundry v. Glen Cove Mfg. Co. 78 N. Y. 130. Where an unfinished skating rink was leased to an irresponsi- ble person, who completed the building and paid no rent, and the lessor's husband made the building contracts for the tenant and offered to pay for the work, and as soon as the building was com- pleted the lessor took possession, it was held she had consented to the completion of the building. Ottizvcllv. Watkins, 15 Daly, 308, affirmed, 125 N. Y. 706. An owner of a building who has not covenanted to repair is not chargeable with repairs made by a tenant by reason of his knowl- edge and acquiescence therein. McAuley v. Hatfield, 59 St. Rep. 552, 28 Supp. 648. But where the owner knew work was done by plaintiff under agreement with the contractor, who had taken the contract to build defendant a house and proved that the work was done under defendant's architect, it was held to warrant a recovery. Neiv v. Carnell, 73 Hun, 564, 56 St. Rep. 425, 26 Supp. 320. The owner of land having made a contract for the doing of work and furnishing materials for building, will be held to have consented that the materials used in the erection thereof shall be furnished the contractor or sub-contractor. Wheeler v. Sco field, 67 N. Y. 311. The meaning of the term "with the consent of the owner" is considered in Riggs v. Chapin, 7 Supp. 765, 27 St. Rep. 268. Where the contract was made with one tenant in common only, consent of the other tenant to the work will not mechanic's lien. 673 Art. 2. By and Against Whom and in What Cases Lien Acquired. render him liable to a personal judgment. Smith v. O'Douneil, 15 Misc. 98, 36 N. Y. Supp. 480. Where the owner has actual notice of the lienor's claim, he cannot avoid liability by paying the contractor. Kc//y v. Bloomingdale, 19 Supp. 126. The owner of land who has contracted to sell it, is to be deemed the owner under the Mechanic's Lien Law until the deed is de- livered, although the purchaser takes possession and builds thereon. Garland v. Van Rensselaer, 71 Hun, 2, 54 St. Rep. 74, 24 Supp. 781. A widow having a life interest in property so long as she remains unmarried, subject to certain charges, is an owner under the Mechanic's Lien Law as to alterations and improvements upon the premises. Lang v. Efcrling, 3 Misc. 530, 52 St. Rep. 489, 23 Supp. 329. Where a lessee under a lease which contained no permission to erect buildings, constructed them on the land leased, it was held the liens did not attach to the land. Havens v. West Side Electric Light &- Pozvcr Co. 44 St. Rep. 589, 17 Supp. 580. The fact that an owner does not eject the contractor as an intruder does not make him liable as consenting to the work if he has forbidden the contractor to continue. W^here a tenant entered into possession under a contract to pay rent or execute a lease, the landlord may rescind the contract, and a contract for repairs or improvements cannot form a basis of a lien against the landlord's interest. Lowryv. Woolsey, 83 Hun, 257, 31 Supp. i loi, 64 St. Rep. 860. Where the agency is denied, it raises a question of fact, and it is error to exclude evidence on the subject. Rope V. Hess, 118 N. Y. 668, reversing 6 St. Rep. 710. Where the pur- chaser entered under a contract which gave no right of possession, commenced building and was ejected by the vendor, it was held there was no such consent or knowledge on the part of the vendor as to sustain a mechanic's lien against him. Cowen v. Paddock, 43 St. Rep. 342, 17 Supp. 387. Where the owner contracted to sell the land to defendant, who failed to make the payments required by the contract and was forbidden to enter on the land until the first installment of purchase money was paid, and the owner, be- coming aware that work was begun, directed it. to be stopped, work having been subsequently resumed without proof of the owner's permission, the vendee was subsequently ejected for failure to make the payments required, it was held the consent of the owner could not be inferred. Cowen v. Paddock, 137 N. Y. 188. [Special Actions — 43.] 6/4 mechanic's lien. Art. 2. By and Against Whom and in What Cases Lien Acquired. Where the owner of the building, independently of a lease, agrees to pay for certain improvements to be made by the ten- ant, by making an allowance on the lease, the tenant becomes principal contractor for such work; the building is not subject to mechanic's liens. Regan v. Borst, ii Misc. 92, 32 Supp. 810, 66 St. Rep. 193. Where the owner acts solely as agent of his tenant, his consent as owner can not be inferred. Havens v. West Side Electric Light Co. 44 St. Rep. 589, affirmed, 20 Supp. 764. Where the contract authorized the owner to complete the work, after default on the part of the contractor, the lien of a sub-contractor will attach to whatever sum remains due on the contract price after deducting therefrom the sums paid by the owner to complete the work. FosJiay v. Robinson^ 137 N. Y. 134. Where there was no provision of this kind in the contract and the contractor failed to complete his work, and it was completed by the owner, and after deducting the expense a balance remained, it was held that plaintiff's lien could not be sustained as nothing was due the contractor when the lien was filed and nothing became due to him thereafter by reason of his breach. Hollister v. Mott, 132 N. Y. 18. See, also, Pell v. Baiir, 133 N. Y. 377. A lien cannot be acquired after the death of the owner for work performed or material furnished during his life- time. Tiibridy v. Wright, 144 N. Y. 519, 64 St. Rep. 46, affirm- ing 7 Misc. 403, 58 St. Rep. 52, 27 Supp. 978. Sub. 3. To What Property Lien Attaches. It it apparent from the whole statute that the lien attaches and the rights of the claimant as against the owner of the property becomes fixed on filing the notice. Kelly v. Bloomingdale, 139 N. Y. 348 ; Kenny v. Apgar, 93 N. Y. 541 ; Hall v. Sheehan, 69 N. Y. 618. A lien will include extra work ordered at various times during the fulfillment of the contract though more than thirty days prior to the filing of the lien. Costello v. Dale, I Hun, 489, 3 T. & C. 493. Lien extends to extra materials which become necessary in consequence of defects in the specifications. McCauley v. Mil- dru7n, I Daly, 596. It only extends to work actually performed under the contract, not for damages for breach of contract, Dennis- ton V. McAllister, 4 E. D. Smith, 729; Nolan v. Gardner, 4 E. D. Smith, 727 ; Miiicr v Hoyt, 4 Hill, 193 ; Hoyt v. Miner, 7 Hill, 525. mechanic's lien. 675 Art. 2. By and Against Whom and in What Cases Lien Acquired. Services rendered by an architect in supervising the erection oi a building are the subject of a lien. Strykcr v. Cassidy, 76 N. V. 50, reversing 10 Hun, 18. It only covers labor performed and materials furnished by the parties claiming it or those employed by him ; it does not extend to materials or labor procured by him in his name and on his credit. Kerby v. Daly, 45 N. Y, 84. An entire contract for digging a cellar, erecting foundations, walls and piers, moving a building and furnishing materials, is the sub- ject of a lien. Chase v. Janirs, 10 Hun, 506. And where the contract provides for blasting and removal of rock, the lien em- braces powder and fuse used for that purpose. Ha card Powder Co. V. Burtis, 21 How. 189. Mirror frames fastened permanently to the structure and intended to be used in and pass with it, form part of the realty and are within the statute. Ward v. Kilpatrkk, 85 N. V. 413. The supply of a furnace, set within a brick structure, and its con- necting pipes and appurtenances, is a contribution toward the construction of a house. Schwartz v. Allen, 24 St. Rep. 912, 7 Supp. 5. Plaintiff is entitled to a Hen for engine, oil traps, foundation plates, etc., furnished for a brewery, which were constructed and firmly annexed to the freehold with the intention of forming a per- manent accession to the brewery. Watts-Campbell Co. v. Yueng- ling, 125 N. Y. I, 34 St. Rep. 255, affirming 51 Hun, 302, 21 St. Rep. 186, 3 Supp. 869. A sidewalk was held to be an appurte- nance to the lot in front of which it was laid within the meaning of the Lien Law in Kemiy v. Apgar, 93 N. Y. 539. A lien may be acquired under the statute for grading and lay- ing out roadways and sidewalks on the tract intended for build- ing lots, although there is no building on the tract. Frederieks V. Goodman, etc. Ass 71, 29 Supp. 1041, 61 St. Rep. 650. The language of the statute is broad enough to include a claim for terracing and sodding the yard of a building lot. Pickett v. Gollner,7 Supp. 196, 26 St. Rep. 691. Also hoisting apparatus furnished and used in erection of a building. Dickson v. La Faro-e, i E. D. Smith, 722. And theatre chairs manufactured with special reference to the building and attached to it. Grosz V. Jackson, 6 Daly, 463. Where the lots or parcel of land contain several buildings which are bein^^ erected under one contract, the lands and buildings 676 mechanic's lien. Art. 2. By and Against Whom and in What Cases Lien Acquired. embraced within the contract will be subject to the lien. Moran V. Chase, 52 N. Y. 346; Hall v. SJieeJian, 69 N. Y. 618; Livings- ton V. Miller, 16 Abb. Pr. 71 ; Payn v. Bonney, 4 E. D. Smith, 734. Where extra work is performed for the owner and in pur- suance of employment by him or by his direction, a lien may be acquired therefor. Morgan v. Stevens, 6 Abb. N. C. 357; Cas- sidy V. Fonthavi, 14 Supp. 151, 38 St. Rep. 177. Where a clause in the contract authorized the owner to request "alterations, deviations, additions or omissions from said contract" to be added to or deducted from the amount of the contract, it was held the amount due for extra work is money due the con- tractor and applicable to the satisfaction of the lien. Blakesleev. Fisher, 21 Supp. 217. Where the consent of the owner cannot be shown and contract was with the tenant only, the fee cannot be subjected to the operation of the lien, and where the contract was made with the tenant his interest alone can be subjected to the lien. Cornell v. Bartiey, 26 Hun, 134, 94 N. Y. 394; Knapp V. Broivn, 45 N. Y. 207; Muldoonv. Pitt, 54 N. Y. 269. The interest of such lessee, however, embraces all improvements erected by him which may be removed without injur)'- to the freehold. Onibony v. Jones, 19 N. Y. 234. A cancellation of a lien by a deposit, merely discharges the lien so far as it affects the real estate and shifts the lien to the funds so deposited. The lien thus imposed on the fund is not discharged by lapse of time, there being no statutor^^ provision requiring that the action to establish the lien on the fund should be brought within one year, nor any provision that the lien upon the fund must be continued by an order of the court. Hafkcrv. Henry, 5 App. Div. 258. An inchoate right of dower is not subject to a mechanic's lien, although the wife agreed to pay. Johnston v. DaJilgren, 14 Misc. 623, 36 N. Y. Supp. 806. Sub. 4. Miscellaneous Provisions as to Validity of Liens. Substantial performance of a contract is sufficient to sustain a mechanic's lien. MurpJiy v. Simonds, 82 Hun, 158, 31 Supp. 295, 63 St. Rep. 744. But where the contractor has failed to perform a substantial part of the work and there is no provision that the owner shall complete it and no failure of the owner to perform his obligation, a sub-contractor can recover nothing under a me- chanic's lien. Smith v. Sheltering Anns, 89 Hun, 70, 35 Supp. mechanic's lien. 677 Art. 2. By and Against Whom and in What Cases Lien Acquired. 62, 69 St. Rep. 273. And where the work is abandoned by the contractor and completed by the owner under contract, the hens of materialmen and sub-contractors are enforcible against the bal- ance of the contract price remaining after deducting the cost of completion. McKce v. Rapp, 35 Supp. 175, 69 St. Rep. 291. However, where sub-contractors voluntarily surrender their con- tract and at their request the contractor assumes charge of the work, and completes it on their account, the creditors of the sub- contractors are not entitled to recover upon liens filed by them except on proof that some amount was due such sub-contractors after deducting the cost of completion. Brainard v. County of Kings, 84 Hun, 290, 32 Supp. 311, 65 St. Rep. 468. The labor must be shown to be part of a continuous work ; it cannot avail if it appears to have been resorted to as a pretext for evading the law. J^uffy v. Baker, 17 Abb. N. C. 357. Service upon the owner of notice of the lien is not necessary to preserve it, the object of the service is to prevent payments by the owner after filing the lien. Kenncy v. Apgar, 93 N. Y. 541. It was held in Roberts v. Fowler, 3 E. D. Smith, 632, that the right to acquire a lien was a purely personal one, and could not be assigned, but in Rollin v. Cross, 45 N. Y. 766, and Hallalian V. Herbert, 57 N. Y. 409, an assignment was recognized. These decisions, however, are unimportant by reason of § 17 of the Act. In order to constitute an equitable assignment, the order must not be general in its terms, but must be drawn upon a particular fund or upon a particular contract. Hiird v. Johnson Park In- vestment Co., 13 Misc. 643 ; S. C.,69 St. Rep. 141 ; 34 Supp. 915. The right to a lien may be waived by express agreement. Tombs V. Rochester R. R. Co. 18 Barb. 583. And a consent by parties to submit their respective claims to arbitration is a waiver of the right to enforce a demand by filing a lien. Nezv York Lumber and Wood Working Co. v. Schneider, 1 Supp. 441, 16 St. Rep. 698. But it seems otherwise if by the terms of the con- tract an arbitration has not been provided for. Cooke v. Odd Fellows Fraternal Union, 49 Hun, 23. Where the contract provided that differences between the par- ties should be submitted to arbitration, and it did not appear de- fendant took any steps to arbitrate, the defence was held to be unavailing. Smith v. Alker, 102 N. Y. 87. Substantial perform- ance of the requirements of the contract is an essential to author- 678 mechanic's lien. Art. 3. Notice of Lien and Filing. ize its enforcement by the lienor, but this does not require a literal performance. Glacius v. Black, 50 N. Y. 145 ; Johnson v. De Peyster, 50 N. Y. 666; Phillip v. Gallant, 62 N. Y. 264; Heck- niann v. Pinkney, 81 N. Y, 211 ; Woodward v. Fuller, 80 N. Y. 312; Wright V. Roberts, 118 N. Y. 672; Murphy v. Simonds, 82 Hun, 158, 31 Supp. 295, 63 St. Rep. 744. A lien may be filed in anticipation of work to be done or mate- rials to be furnished, and if an action is brought to foreclose before the work has been completed, a recovery may be had for all that is due at the time of trial. Ringle v. Wallis Iron Works, 85 Hun, 279, 32 Supp. ion, 66 St. Rep. 494. A mere agreement to take notes in payment does not deprive a mechanic of his right to file a lien. Kcogh v, Eisenberg, 7 Misc. 79, 27 Supp. 356, 57 St. Rep. 91 ; also, Bates v. Trustees Masonic Hall Asylum Fund, 7 Misc. 609, 27 Supp. 951, 58 St. Rep, 790. ARTICLE HI. Notice of Lien and Filing. §4. Sub. I. Notice of lien and filing. § 4. 2. Verification of lien. Sub. I. Notice of Lien and Filing. § 4. Notice of lien ; filing and requisites of; notice upon owner. At any time during the performance of the work or the furnishing of the mater- ials, or within ninety days after the completion of the contract or the final perform- ance of the work, or the final furnishing of the material for which a lien is claimed, dating from the last item of work performed or from the last item of material fur- nished, the person or persons, firm or firms, corporation or association furnishing such materials or performing such labor or service may file a notice of lien in writ- ing in the clerk's office in the county where the property is situated against which the lien is asserted, containing the names and residences of the claimants, the na- ture and amount of the labor and service performed, or the materials furnished or to be furnished, with the name of the owner, lessee, general assignee or person in possession of the premises against whose interest a lien is claimed ; the name of the person or persons, firm or firms, corporation or association by whom he was employed, or to whom he furnished or is about to furnish such materials, or whether all the work for which the claim is made has been actually per- formed or furnished, and if not, how much of it, and also a description of the property to be charged with a lien sufficient for identification, and if in a city or village the situation of the building or buildings by street and number, if the street and number be known. mechanic's lien. 679 Art. 3. Notice of Lien and Filing. But the failure to state the name of the true owner, lessee, general assignee, or person in possession shall not impair the validity of the lien. The said notice of lien must be verified by the person or one of the persons, member of a firm or firms, an oflScer of the corporation or association making the claim or his, its or their agent, to the effect that the statements therein con- tained are true to the knowledge or information and belief of the person making the same. The county clerk of each county shall provide and keep a book in this oflSce to be called the " Lien Docket," which shall be suitably ruled in columns headed " Claimants," " Against whom Claimed," " Owners and Parties in Interest," " Premises," " Amount Claim.ed ; " in which he shall enter the particulars of such notice of lien together with the date, hour and minute of filing of the notice of lien, and what proceedings have been had, the names of the owners and persons in interest, and other persons against whom the claims are made, shall be entered in said book in alphabetical order. A fee of twenty cents shall be paid to said clerk on filing such notice of lien. Every claimant shall within ten days after filing his notice of lien as herein provided, serve a copy of such notice upon the owner or other person in inter- est, by delivering the same to him personally or by leaving a copy thereof at his last known place of residence in the city or town in which such lands or part thereof are situated, with some person of suitable age and discretion, or if such owner or person in interest has no such residence, or such person cannot be found, by affixing a copy thereof conspicuously on said premises described in said notice of lien between the hours of nine o'clock in the morning and four o'clock in the afternoon. And after such service such owner or the person in interest shall not be pro- tected in any payment made to such contractor or other claimant. Under the Lien Law, the fihng of the prescribed notice origi- nates the lien, and until this is done the labor or materialman has no preferential right to be paid out of a sum due the contractor from the owner of the building. If, before notice is filed, the contractor assigns to a creditor in payment of his debt, the whole or any portion of the moneys due or to become due to him on his contract, the a.s.signee is entitled to the same in preference to the lienor. Stevens v. Ogden, 130 N. V. 182. Same rule is applied in McCorklc v. Herrman, 117 N. Y. 297. It would lead to great embarra.ssment, uncertainty and incon- venience if a person receiving money from a builder would have to ascertain whether he obtained it under a building contract before he could safely take it for property sold or apply it upon an antecedent debt justly due. Mack v. Col/cran, 136 N. Y. 617, citing Payne v. Wilson, 74 N. Y. 348. A mechanic's lien is acquired by filing the notice prescribed by statute, and takes effect from the time of .such filing. Sinclair v. Pitch, 3 E. D. Smith, 6yy \ Cox V. Broderick, 4 E. D. Smith, 721 ; Noycs v. Burton, 29 Barb. 68o mechanic's lien. Art. 3. Notice of Lien and Filing. 63 1 ; Ernst V. Reed, 49 Barb. 367 ; Brown v. Zeiss, 9 Daly, 242 ; Munger v. Curtis, 42 Hun, 465 ; Livingsto)i v. Mildrum, 19 N. Y. 440; Payne v. Wilson, 74 N. Y. 348. Where machinery was furnished to a brewery and the alteration thereof on the 31st of May, but the plaintiff was engaged until the 2 1st of June in placing it in position, it was held that a notice of Hen filed on the 17th of September was in time and effectual to perfect the lien. Watts-Campbell Company v. Yne^igli^ig, 125 N. Y. I, 34 St. Rep. 255, affirming 51 Hun, 302, 21 St. Rep. 186, 3 Supp. 869. The lien must be filed within the time limited by statute or it is absolutely void, and this time cannot be extended by tacking one lien upon another. Lutz v. Ey, 2 E. D. Smith, 621 ; Hiibbell V. Schreyer, 14 Abb. (N. S.) 284; Donaldson v. O'Connor, i E. D. Smith, 695 ; Spencer v. Barnett, 35 N. Y. 94. Where a lien was filed by a contractor in New York city more than sixty days after the completion of the work, though the architect's certificate called for by the contract had not been given, it was held invalid. Fay V. Muhlker, i Misc. 321, 48 St. Rep. 699, 20 Supp. 671. Same rule as to sub-contractors and lien not filed within ninety days. McMahon v. Hodge, 2 Misc. 234, 50 St. Rep. 758, 21 Supp. 971. The right to acquire a lien is a purely personal one, and prior to the filing of the notice it can not be assigned, but where the assignment is merely nominal the assignee may claim for the benefit of the real owner. Rollin v. Cross, 45 N. Y. 766; Halla- han V. Herbert, 57 N. Y. 409. The fact that the notice of lien stated that both defendants, husband and wife, owned the prop- erty when, in fact, it was owned by one of them only, was held not to impair the validity of the lien. Dennis v. Walsh, 41 St. Rep. 103, 16 Supp. 257. A notice of lien need not state that the lien is a claim against the persons named ; if the names are given and the facts subjecting their notice to the lien are stated, the statute is satisfied. Ross v. Simon, 30 St. Rep. 545, 9 Supp. 536, reversing 8 Supp. 2, 28 St. Rep. 147. A description of the property to be affected is suffi- cient if it can be thereby located and identified, and a mistake as to the name of the owner of the property does not invalidate the lien. WalkajH v. Henry, 7 Misc. 532, 27 Supp. 997. An error in the notice, through inadvertence or uncertainty as mechanic's lien. 68 1 Art. 3. Notice of Lien and Filing. to ownership in naming the wrong person as owner, does not impair the validity of the Hen. Hankinson v. Riker, 10 Misc. 185, 62 St. Rep. 484, 30 Supp. 1040. An error in the statement of the name of the owner does not vitiate the hen. Berry v. Gavin, 88 Hun, i, 34 Supp. 505, 68 St. Rep. 288. The provision of the statute that the failure to state the name of the true owner shall not impair the validity of the lien, renders an omission of the name immaterial where the name of the reputed owner appears. Spruck v. McRobcrts, 19 Supp. 128, 45 St. Rep. 624. If the owner's name appears anywhere in the notice of lien, it will be sufficient ; although the claim is inadvert- ently made against another person. Moran v. Chase, 52 N. Y. 347. Where there has been a change of ownership during the progress of the work, the person in whom the fee is vested at the time of the filing of the notice is the proper person again.st whom the claim should be made. Tiley v. Thousand Islands Hotel, 9 Hun, 424. A statement that the sum claimed is the price of the work when, in fact, it was of greater value, and the sum claimed is the balance unpaid, is not conclusive where the owner had knowledge of the particulars of the claim and could not be misled by the error. Bryson v. St. Helen, 79 Hun, 167, 61 St. Rep. 390, 29 Supp. 524. Where a plaintiff intentionally filed claim for more than double the .sum due him, it was held he was not entitled to a lien for the materials actually furnished and used. Goodrich v. Gillies, 66 Hun, 422, 50 St. Rep. 142, 21 Supp. 400, but an error in the amount due in the notice of lien, if made without fraudulent intent, will not invalidate the lien. Goodrich v. Gillies, '8,2 Hun, 18, 63 St. Rep. 318. A contractor can file a valid lien for the whole contract price before all the work is done or all the materials furnished provided the balance of the contract is thereafter fully completed. //' ^"PP- 737. 19 ^iv. Pro. R. 378, 25 Abb. N. C. 344. If, for want of a continuance, a lien becomes lost during the pendency of the action, the court having acquired jurisdiction can retain it and render a personal judgment. Darrozc v. Morgan, 65 N. V. 333. And although a lien must be shown to have existed at the time of the commence- ment of the proceedings, yet if jurisdiction is thus established, the court may proceed and determine the controversy and render a personal judgment after the lien has expired. McGraivw God- frey, 16 Abb. (N. S.) 358. These decisions were made under the Act of 1863. The price agreed to be paid by the contract for work is evi- dence of its value. Morgan v. McKcnzic, 17 Supp. 174, 43 St. Rep. 131. The burden of proof is on the claimant to establish his lien and charge the property, and upon a sub-contractor to show that the moneys to which he claims his lien attaches are due from 7i6 mechanic's lien. Art. 8. Foreclosure of Liens. the owner to the contractor. Taylor v. Baldwin, lo Barb. 626; Haswellv. Goodchild, 12 Wend. 373. Where the architect's cer- tificate has been waived, by making payments without requiring its production, it may be procured at any time before the trial of the action, and offered in evidence. Hartley v. Ahirtha, 5 App. Div. 408. In an action by a sub-eontractor to foreclose a lien, evidence as to a personal claim against the owner is inadmissible. Carney V. Riley, 18 Misc. 11. An offer under § 19 which failed to state that it was made "in discharge of the lien" was held to be ineffectual to defeat the right of the lienor for further costs ; so held in Burton v. Rockwell, 63 Hun, 163, 17 Supp. 665, 44 St. Rep. 487; Pratt, J., following Hall v. Dennerlein, 39 St. Rep. dy, 14 Supp. 796, which holds that such a form of offer is requisite. Costs are in the discretion of the court to be awarded as may be just and equitable. Eagleson v. Clark, 2 Abb. 364. The allowance of costs in an action to foreclose a mechanic's lien rests wholly in the discretion of the court. Carney v. Riley, \% Misc. 11 An action to foreclose a mechanic's lien is not an action to deter- mine a claim to real property under § 3352 of the Code, and an addi- tional allowance cannot be granted under that section. Wright v. Reiisens, 39 St. Rep. 802. W^here the lien is filed against an executor or administrator and the claim is not unreasonably resisted, the court may, in its discretion, refuse to award costs. Marryatt v. Riley, 2 Abb. N. C. 119. Where there has been no offer of judgment, payment or deposit as required by § 19, plain- tiff is entitled to costs though he recover less than the amount claimed. Valk v. MeKenzie, 16 Supp, 741, 43 St. Rep. 26. The court may, where the owner defends the action, compel him to pay costs in addition to the sum actually due the con- tractor. Kenney v. Apgar, 93 N. Y. 535. See Morgan v. Stevens, 6 Abb. N. C. 356; Miillv. Jones, 18 Supp. 359; Holler v. Appa, 18 Supp. 588, 47 St. Rep. 485. The owner against whom a lien is filed, to protect himself against costs must discharge the lien by deposit in the mode prescribed by statute. Williamson v. Hendricks, 10 Abb. 98. Sub. 6. Judgment. §§ 15, 16, 23. § 15. Personal judgment. Whenever, in any action brought under the provisions of this act, any claim- ant shall fail, for any reason, to establish a valid lien, he may, nevertheless, re- cover therein judgment against the party or parties to the action for such sum mechanic's lien. 717 Art. 8. Foreclosure of Liens. or sums as may appear to be due to him, and which he might recover in an ac- tion upon a contract against the said party or parties. § 16. Transcript of judgment. A transcript of every judgment rendered under and according to the pro- visions of this act, headed " Lien Docket," shall be furnished by the clerk of the county where rendered, and docketed to the successful party who may file the same with the clerk of any other county, and if the judgment is for twenty-five dollars or upwards, exclusive of costs, the same shall thereafter be a lien on the real property in the county where the same is filed and docketed, of every person against whom the same is rendered, in like manner and to the same extent as in other actions for the recovery of money arising on contracts. When the action is tried and the judgment rendered in a court not of record, the justice of the court in which the action was tried, or other person authorized to furnish transcripts of judgments therein, shall furnish the successful party a transcript thereof, who may file the same with the clerk of the county with whom the notice of lien is filed. The filing of such transcript shall have the same effect as the filing of tran- scripts of judgments rendered in such courts not of record. In all cases where the judgment is against the claimant or claimants, the county clerk shall enter the word " discharged " under the last head in his lien docket. § 23. Judgment for deficiency. Whenever, on the sale of property against which a notice of lien is filed, as provided in the fourth section in this act, there is a deficiency of proceeds, judg- ment may be docketed for deficiency against the persons, firms, corporations or associations named in the judgment as personally liable therefor, and therein adjudged to pay the same in like manner and with like effect, as in actions for the foreclosure of mortgages. The provisions of this section shall not apply to actions commenced in courts not of record. Childs V. Bostwick^ 65 Hovv^ 146; Schacttlcr v. Gardiner, 47 N. Y. 404; McGraw v. Godfrey, 59 N. Y. 610 ; Burroughs v. Tostcvan, 75 N. Y. 571 ; Darrow v. Morgan, 65 N. Y. m, were decided before the enactment of § 15, and are either overruled thereby or rendered obsolete. Since the statute, Crouch v. Moll, 8 Supp. 183, Alticriv. Lyon, 13 Supp. 617, ^-j St. Rep. 881. 59 Supr. 1 10, and Thomas v. SaJiagan, 10 Supp. 874, have applied its provisions. The court may proceed as the circumstances warrant and sjive a common-law judgment where it appears that plaintiff has been deprived of a lien by reason of a foreclosure sale under a priar lien. Crouch v. MolL 28 St. Rep. 48, 8 Supp. 183. Where an undertaking has been given to discharge a lien, judgment may be against the defendant personally and for the foreclosure of the lien. Picket v. Golncr, 26 St, Rep. 691, 7 Supp. 196. 71 8 mechanic's lien. Art. 8. Foreclosure of Liens. A judgment directing a recovery of the whole amount of the lien which also directs a sale of the premises and in case of a deficiency that plaintiff have judgment and execution against the owner therefor, is proper. Decker v. O'Brien, i App. Div. 8i, 36 N. Y. Supp. 1079, 72 St. Rep. 22. A sub-contractor is entitled to have a judgment reviewed when an appeal has been taken although he has not served a notice of appeal, as under the pro- visions of § 15, providing that in any action brought to foreclose a lien, if the party fails for any reason to establish his lien, he may still recover on the contract such sum as may be due him, and the sub-contractor would otherwise be concluded by a judgment and appeal from any other action brought to enforce his claim. Murdoch v. Jones, 3 App. Div. 221. Where it appears that certain installments were due from the owner to the contractor, which the former has wrongfully refused to pay, the lienors are entitled to payment out of the sum due at the time of such refusal, although the building cost more to com- plete than the original contract price. Thomas v. Sahagan, 32 St. Rep. 1057, "•'JPP- 874- A judgment must direct a sale of the owner's interest in the property and prescribe the manner in which the proceeds shall be distributed. Eagleson v. Clarh, 2 E. D. Smith, 644; Althonsc v. JVarren, 2 E. D. Smith, 367; Lenox v. Yorkville Church, 2 E, D. Smith, 673 ; SdiUJi v. Corey, 3 E. D. Smith, 642 ; Mcehan v. Williavis, 2 Daly, 367. Subse- quent liens are cut off by a judgment and sale in accordance therewith. Livingsto7i \. Miller, 16 Abb. 371. A purchaser under such judgment may contest the validity of a prior mortgage. Nichols V. Hill, 6 T. & C. 335 ; K7tickerbocker Ins. Co. v. Hill, 6 T. & C. 285. Precedent for Judgment, COUNTY COURT — Col NTY of Richmond. John H. Van Clief and William S. Van Clief agsL Hanna R. Van Vechten, George L. Smalle, Elwood J- 130 N. Y. 571, H. Newman, Clark A. Newman, Karl Feist, agent; Abram B. Mersereau, George Mersereau and Vernon R. Gregg. The issues in this action having been referred by order of this court, dated October 30, 1888. to Sidney F. Rawson, Esq., as sole MECHANIC S LIEN. 719 Art. 8. Foreclosure of Liens. referee to hear and determine the same, and the said issues having been heard, tried and determined and the said referee having made his findings of fact and law and report thereon, dated February 26, 1889, which findings of fact and conclusions of law and report were filed with the clerk of this court on the 27th day of February, 1889, by which report and findings it appears that there was due and unpaid and owing from the defendant, Hanna R. Van Vechten, as owner, to George L. Smalle, contractor, at the time of the filing of the notice of lien by the plaintiffs herein, on the 17th day of Septem- ber, 1886, the sum of $800, and that the plaintiffs by filing such notice of lien acquired a mechanic's lien against the defendant, Hanna R. Van Vechten, as owner of the premises hereinafter de- scribed, against said premises in pursuance of and by and with the terms of the statute in such case made and provided, by virtue of the performance of certain labor upon and the furnishing of certain materials to be used and which were used in the construction of the building upon the lot or parcel of land hereinafter described, which said lien has heretofore, and within the time allowed by law for that purpose, been duly perfected and that this action was begun to fore- close said lien. Now, on motion of Thornton, Earle & Kiendl, attorneys for the plaintiffs, it is adjudged that the premises described in the complaint in this action as hereinafter set forth, or so much thereof as may be sufficient out of the moneys applicable thereto to pay the amount due to the plaintilfs for principal, interest and costs, and which may be sold separately without material injury to the parties interested, be sold at public auction in the county of Richmond by or under the direction of Sidney F. Rawson of the county of Richmond, a referee hereby duly appointed for that purpose, that the said referee shall give public notice of the time and place of such sale according to law and the practice of this court. That either or any of the parties to this action may purchase at such sale; that the referee shall execute to the purchaser or pur- chasers a deed or deeds of the premises sold. That out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale and any lien or liens upon said premises so sold at the time of such sale for taxes or assessments, the said referee shall first pay to the plaintiffs or to their attorneys the sum of $655.21, adjudged to the plaintil'fs for their costs, disbursements and allowance in this action, with the interest thereon from the date hereof, and then pay to the plaintiffs or their attorneys herein the sum of $917.30, with interest thereon from the date of said report, or so much thereof as the purchase money of the said premises will pay of the same, take receipt therefor and file the same with his report of .sale. That the surplus moneys arising from the said sale, if any there should remain, be paid into this court within five days after the same is received and ascertainable, subject to the further order of the court; that said referee make a report of such sale and file it with the clerk of this court with all convenient speed. And it is further adjudged that the defendants and all persons 720 MECHANIC S LIEN. Art. 8. Foreclosure of Liens. claiming under them, after the filing of the notice of pendency of this action, be forever barred and foreclosed of all right, title, interest and equity of redemption in the premises so sold or any part thereof, and that the purchaser or purchasers be let into possession on the production of the said referee's deed and a certified copy of the order confirming the report of sale. The following is a description of the mortgaged premises hereinbe- fore mentioned: (Insert description.) Extra allowance to plaintiffs of five per cent. STEPHEN D. STEVENS, County Judge. Precedent for Judgment. SUPREME COURT — Delaware County. I Charles E. Ogden, Plaintiff, agst Horace Hills, George O. Mead, as General Assignee of Horace, Hills for the Benefit of his Creditors; Elizabeth Alexander, Elma Pierson, Jennie Bri- }- 140 N. Y. 356. sack. Mary Alexander, Martha Alexander, infants, by John W. Alexander, their Guardian ad litem ; Steven Berry, Alfred Twaddell, George B. Selden, G. V. Selden and W. H. Van Wagenen, Defend- ants. This action being for the foreclosure of a mechanic's lien and the issues therein having been duly referred to Hon. W. B. Edwards, as sole referee to hear and determine the same, and all the issues therein, and the said cause and all the issues thereon having been brought to trial before the said referee and the said referee having made his report, bearing date of May 4th, 1891, and which has been duly filed, whereby the said referee orders and directs judgment in favor of the plaintiff and against the defendants barring and fore- closing them of all interest and equity of redemption in and to the premises described in the complaint herein and for the sale of all the right, title and interest which the defendants Elizabeth Alexander, Mary Alexander, Martha Alexander, Elma Pierson and Jennie Bri- sack, acquired on the death of Charles Alexander, intestate, and all the interests that the said Charles Alexander had therein on the 20th day of August, 1889, at which time the lien herein was filed according to law, and for the payment to the plaintiff from the pro- ceeds of such sale of the sum of $556.90 and interest thereon, and the plaintiff's costs and disbursements of this action to be taxed, which are hereby granted him, and in case such proceeds are insufficient to pay the sum aforesaid for payment against the defendant Horace Hills for the amount of any deficiency so remaining, and the plain- MECHAMC'S LIEN. 72I Art. 8. Foreclosure of Liens. tiff's costs and disbursements in the action having been duly taxed at the sum of §282. Now, on motion of .Me.xander Nc-ish, plaintiff's attorney, it is adjudged and decreed that all the .ight, title and interest which Charles Alexander had on the 20th day of August, 1889, in and to the premises described in the complaint herein and hereinafter par- ticularly described (which interest upon the death of said Charles Alexander on the 15th day of September, 1S89, devolved upon the defendants herein, Elizabeth Alexander, his widow, Klma Pierson, Jennie Brisack and Mary Alexander and Martha .Alexander, children and sole heirs at law of the said Charles Alexander) at the time of filing plaintiff's lien described in the complaint herein, be sold at public auction at Walton, N. Y., by and under the direction of the sheriff of the county of Delaware. That the said sheriff give public notice of the time and place of such sale according to law. That either of the parties to this action may purchase at said sale, that said sheriff deliver to the purchaser or purchasers a deed of the premises sold, on the purchaser complying with the terms on which the same were sold, 'rhat out of the proceeds of such sale, after deducting his fees and the expenses thereof, the sheriff pay to the plain- tiff or his attorney $282 costs taxed as aforesaid, and adjudged to said plaintiff with interest thereon from this date, and that he further pay to the plaintiff or his attorney, the sum of §556.90, the amount of claim and interest reported due as aforesaid, and with interest, thereon from the date of said report, viz.: May 4th, 1891, or so much thereof as the purchase money of said premises will pay of the same, and take receipts therefor and file them with his report of sale ; and that the purchaser at such sale be let into possession of the premises on production of the deed. That said sheriff pay the sur- plus arising on said sale, if any there be, to the treasurer of the county of Delaware to the credit of this action within five days after the same shall be received and ascertainable, subject to the further order of this court. That he make a report of such sale and file it with all convenient speed with the clerk of this court; that if there be any deficiency remaining on such sale said sheriff specify the amount thereof in his report of sale and that the plaintiff recover of the ilcfendant Horace Hills the amount of deficiency so remaining and have execution therefor. And it is further adjudged that the defendants and all persons claiming under them or either of them, subsetiuent to the filing of the notice of the pendency of this action (which appears by said referee's report was filed and recorded in the office of the clerk of Delaware county on January 16, 1890) be forever barred and fore- closed of all right, title, interest, estate, claim, lien and equity of redemption of, in and to the premises sold as aforesaid, and every part thereof, with the appurtenances. The following is a description of said premises as set forth in the complaint: (Insert description.) GEORGE W. CR.\\\ loKD. Clerk. [Special Actions — 46.] 722 MECHANIC S LIEN. Art. 8. Foreclosure of Liens. Sub. 7. Foreclosure in Courts not of Record. §§ 9-13. § 9. Jurisdiction ; summons and complaint. An action to foreclose a lien provided for in this act, may be brought in a court not of record, which would have jurisdiction to render a judgment in an action upon a contract for a sum equal to the amount of the lien, and shall be commenced by the personal service anywhere within this State, of a summons and complaint verified according to the provisions of section five hundred and twenty-six of the Code of Civil Procedure, upon the owner or other person in in- terest as described heretofore in this act. The complaint must set forth substantially all the facts contained in the notice of lien filed with the clerk of the county as provided in section five (four) of this act, and the substance of the contract. The form and contents of the summons shall be the same as prescribed by the Code of Civil Procedure for the commencement of an action in a court not of record. The summons must be returnable not less than twelve nor more than twenty days after the date when it is issued. § 10. Service of summons by publication. When the summons in an action in a court not of record cannot be served per- sonally on the owner or party in interest, by reason of absence from the State or concealment therein, such service may be made by leaving a copy of such summons at the last place of residence of such owner or person in interest, as aforesaid, and by publishing a copy of such summons for three weeks in suc- cession in a newspaper published in the city or county where the property is situated. If the service of the summons is made by publication, the time when said notice is returnable shall commence to run from the day of the last publication. § 11. Procedure. At the time and place specified in the summons for the return thereof, issue must be joined if both parties appear, by the owner or other person in interest filing with the justice an answer in writing verified as herein provided for veri- fying the complaint, and which may contain a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; it may also set forth any legal or equitable defence or counterclaim to such complaint. If the owner or other party in interest fails to appear on the return day of the summons on proof by affidavit of the service of the summons and complaint, if personal service thereof be made, or if by publication or (on) proof of the service of summons by advertisement, judgment may be entered for the amount claimed in the complaint, with the costs; execution may thereupon be issued for the collection of said judgment and costs, the same as upon judgments in ac- tions on contract in such courts, except that the execution shall direct the officer to sell the right, title and interest of the owner or other person in interest as aforesaid in the premises, upon which the claim set forth in the compxlaint was a lien at the time of filing the notice of lien prescribed in the fourth section of his act. MECHANIC S LIEN. 723 Art. 9. Liens against Municipal Property under C