\ TOammntawBookCo . ^rochester.n.kS Corn ELL University Law Library THE GIFT OF /^^z^^.^^^d^_ - Date ..7??<:«?rr*r' .f.i:6j./..9p!.%: ''i:^"LiB^>t>'' Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022803963 REAL ESTATE PiCEEDllS PRECEDENTS. The Procedure and Practice in all Actions Affect- ing Title to Real Property as Provided hj the Code of Civil Procedure, known as SPECIAL PROVISIONS REGULA/TING ACTIONS RELATING TO REAL PROPERTY. INCLUDING ALL ACTIONS AND SPECIAL PROCEEDINGS RELATING TO Title by Mortgage Foreclosure, Mechanics' Liens, Estates of Incompetents, Sale of Dece- dent's Real Property to Pay Debts, Actions Against Heirs, etc., WITH ALL NECESSARY FORMS AND PRECEDENTS. By D. H. ^jCJALLS, Johnstown, N. Y. ALBANY, N. Y. WEARE C. LITTLE & COMPANY, Law Booksellers and Publishers. 1898. /^;27/f^- Entered, according to Act of Congress, in the year eighteen hundred and pinetyrseven, Bt D. H. MoFALLS, In the office of the Librarian of Congress, at Washington, PREFACE The purpose of this work being to aid the busy lawyer in furnishing him a true guide in his actions and proceed- ings affecting real estate, the writer has no intention of taking his time with a lengthy preface, as the work, if it speaks at all, will speak for itself, and is here put forth with the hope and belief, that to some overworked brother it may afford a help and guide on his weary way. D. H. MoFALLS. Johnstown, N. Y. REAL ACTIONS CHAPTER I. ACTIONS TO RECOVER REAL PROPERTY, COMMONLY KNOWN AS "ACTIONS IN EJECTMENT." Jurisdiction. The Supreme Court has exclusive jurisdiction of all actions in ejectment, and said actions must be tried in the county in which the subject thereof or some part is situate. Code, §§ 217, 340, 982. When maintained. Ejectment is an action brought to establish a judicial determination of the title to land, and to remove those wrongfully in possession. The action will lie only for lands of which the possession thereof can be delivered by the sheriff on execution. Child V. Chappell, 9 N. Y. 246; Carleton v. Darcy, 90 N. Y. 566; Code, §§ 1500 and 1501. When lands can be possessed. If the land can be possessed, it makes no difference if, at the time of the trial, it is so situated that the sheriff could not get it to deliver possession. Woodhull V. Rosenthal, 61 N. Y. 382. Such as land under water, made land or land covered by obstructions, lands subject to easements of a highway. Etz V. Dally, 20 Barb. 32; Gaslight Co. v. R., W. & O. R. B. Co., 11 Civ. Pro. Rep. 239; Strong v. City of Brooklyn, 68 N. Y. 1. Lands belonging to the State by escheat, or by convic- tion, or by outlawry for treason, or by forfeiture. 1 R. S. 666 (718), § 1. 2 Reaij Actions. The people may. The Board of Fisheries, Game and Forest may bring an action, in the name of the people, to recover lands properly forming a part of the forest preserve and occu- pied or held by persons not entitled thereto, and said board may employ counsel to bring said action. Such actions shall be brought in the county where the land lies. Laws 1892, ch. 488, § 280, as amended by Laws of 1896, ch. 114. Wliat a party out of possession must show. A party out of possession who seeks to regain it, must show a good and sufficient title in himself, which must be legal and not equitable, and must have a right of entry or of possession at the time of the commencement of the suit, and at trial. Smith V. McCann, 24 How. (U. S.) 398; Wait's Actions and Defenses, vol. 3, pp. 10-11. For a forfeiture under a lease or conditional fee, see Van Rensselaer v. Ball, 19 N. Y. 100. Claim under color of title. Claim under color of title may ripen into title by limi- tation, but must commence under color of title. La Prombois v. Jaeltson, 8 Cow. 589. Any fact which goes to disprove the plaintiff's right or the unlawful entry or unjust withholding constitutes a legal defense. Stowe V. RusseU, 36 111. 18. When it cannot be maintained. Code, §§ 1498 and 1499. Will not lie for lands over which a projection extends (which is simply a nuisance for which damages can be recovered). Aikin v. Benedict, 39 Barb. 400; HofCman v. Armstrong, 48 N. Y., 201. But in Leprell v. Kleinschmidt (112 N. Y. 364), the Court of Appeals left the question of projection undecided. Nor for an easement as a right of way. Eedfield v. U. S. K. R. Co., 25 Barb. 54; also Wilklow V. Lane, 37 Barb. 244. Actions in Ejectment. 3 Nor for the right to use a wharf or pier. Nor for the right to flood lands. Nor for anything merely lying in grant and not capable of being delivered by execution. Nor for land covered by part of an adjoining house vphich was erected by a common owner of both lots. Nor as to mining rights. Nor against a municipal corporation for the public use of a street. Child V. Chappell, 9 N. Y. 246; Wllklow v. Lane, 37 Barb. 244; Northern Turnpike Co. v. Smith, 15 Barb. 355; Bondage v. Warner, 2 Hill, 145; Rogers V. Suinisheimer, 50 N. Y. 646; Moore v. Brown, 139 N. Y. 127; Cowenhaven v. Brooklyn, 38 Barb. 9. As to reservations under a grant. See Jackson v. Buel, 9 Johns. 298; Jackson v. May, 16 Johns. 184. What is necessary title. Code, §§ 1503, 1504 a,nd 1505; Clason v. Baldwin, 129 N. Y. 183. Plaintiff can only recover upon the strength of his own title. Roberts v. Bumgarten, 110 N. Y. 380. And can take nothing by reason of defects in defend- ant's title. Wallace v. Swinton, 64 N. Y. 188. It must either appear that plaintiff has title, or that he has a prior actual possession by virtue of some subsisting interest in the premises. Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Pierce v. Tuttle, 53 Barb. 155; People v. Vai. Rensselaer, 9 N. Y. 291. The action cannot be maintained upon a mere equitable title. Risley v. Rice, 40 Hun, 585. Except where the equitable owner is in possession as against a stranger in wrongful possession. Murphy v. Loomis, 26 Hun, 659. One having legal title can maintain an action against one in possession under a contract unless the vendee is 4 Keal Actions. entitled to possession by express provisions, then it can only be maintained if the vendee is in default. Eisley v. Rice, 40 Hun, 585; Sedg. and Waite on Title to Land, § 394. A mortgagee, or his assignee, or other representative, cannot maintain the action. Code, § 1498. One holding a conditional title, unless the condition is broken, can maintain the action. Olmstead v. Harvey, 1 Barb. 102; Candee v. Burke, 1 Hun, 546. And where land has been granted upon condition the grantor can maintain an action vs^here there is a breach without notice. Plumb V. Tubbs, 41 N. Y. 442. The action cannot be maintained for dower. Code, § 1499; Campbell v. Ellwanger, 81 Hun, 259. A lessee may maintain the action as against a stranger, and also as against his lessor. Trull V. Granger, 88 N. Y. 115. Where the conveyance is void because the grantor was out of possession the grantee, his devisees or heirs may maintain the action in the name of the grantor or his heirs. And the grantors in the void deed must be joined as plaintiffs. Code, § 1501; Chamberlain v. Taylor, 92 N. Y. 348; Crowley et al. v. Murphy, 11 Misc. 579. But the grantee cannot bring an action in his own name. Lawber v. Kelly, 17 Abb. 452. And that the plaintiff has conveyed while out of posses- sion, is no defense. Chamberlain v. Taylor, 92 N. Y. 348. Eemedy of a vendee. The remedy of a vendee is by an action in trespass or ejectment and for mesne profits. Preston v. Hawley, 139 N. Y. 296. Actions in Ejectment. 5 Action by the people. The people are the owners of all the lands in the State that have not been granted, or sold, and are deemed to possess the original and ultimate property in all the lands of the State, and being the source of title the people are presumed to be the owners of lands not granted or sold, until the contrary appears. And in an action to recover the possession thereof brought by the people, it is sufficient in the first instance to entitle them to recover, to show that such premises are vacant, uninclosed and unoccupied. People V. Livingston, 8 Barb. 253. The people cannot maintain the action unless they have an interest in the land. People V. Booth, 32 N. Y. 397. Lands that are vacant and unoccupied, unimproved and uninclosed commons; defendants have not such a pos- session independent of a valid paper title, as will defeat an action by the State for ejectment. Id. ; People v. Livingston, 8 Barb. 253. A grant obtained by fraud or misrepresentation cannot be attacked collaterally in an action of ejectment. Id. There must be a continuous possession for forty years to bar an action by the State. Id. As the plaintiff must recover on his own title, the defend- ant may defend his own title or the outstanding title which shows that the plaintiff lacks an element. There- fore, it is a general rule that the defendant may show an outstanding title which is paramount to that of the plaintiff, and it is not necessary to show that he iolds it himself or is in any way connected with it. Raynor v. Timerson, 46 Barb. 518. 6 Eeal Actions. Improvements. The defendant, where he holds by color of title and has made improvements in good faith, may be allowed for such improvements in reduction of the rents and profits. Code, § 1531; Ringhouse v. Kenman, 63 111. 230. And if the defendant's holding is under color of title, the improvements will be presumed to have been made in good faith. Id. Parties. PlaintifEs. Any person who is a joint tenant or tenant in common with one or more persons, should be made plaintiff. Code, § 1500; Skinner v. Odenbach, 81 Hun, 315. A grantee, his heir or devisee, but in the name of the immediate grantor or his heir, where the conveyance under which he claims is void because the grantor was out of possession. Code, § 1501; Smith v. Long, 12 Abb. N. C. 113. An infant may be plaintiff. Code, § 1686. Committee of a lunatic or incompetent person may be plaintiff. Code, § 2340. Personal representatives. An assignee of the lessee for life. Moshier v. Yost, ,33 Barb. 277. Where a party who is a tenant for life or a term of years suffers judgment to go against him by consent or default, the one owning the reversion or remainder may, after the termination of the estate, maintain the action. Code, § 1680. Whoever is entitled to the possession of real estate, whether by legal or equitable title, may be plaintiff. Clute V. Voris, 31 Barb. 511; Phillips v. Gorham, 17 N. Y. 270; Glacken v. Brown, 39 Hun, 295. Actions in EjectmBnt. 7 The widow who is guardian in socage of the children, heirs of her husband, may maintain an action in her own name for one-third of the land in her own right as devisee, and for two-thirds as guardian. Moore v. Deyoe, 22 Hun, 208. A grantor, lessor, or his heirs, devisees or assignee, who have a right to enter land when six months' rent or more is in arrears, may maintain an action without any demand for rent or re-entry. Code, § 1504. Notice of re-entry. But where the right to re-enter is reserved and given to a grantor or lessor, in default of sufficient goods and chattels whereon to distrain for rent due, the re-entry may be made, or action to recover the property demised or granted, provided fifteen days' written notice has been given of his intention to re-enter. Code, § 1505. A wife who has properly left her husband, leaving him in possession of her own land, may maintain the action. Wood V. Wood, 83 N. Y. 575; see Gould v. Gould, 29 How. 441. A married woman may bring an action for her separate estate. Code, § 450. A lessee may bring an action before re-entry against a stranger and also against his lessor. TluU V. Granger, 8 N. Y. 115. When an action is brought by one with an equitable title, all persons must be before the court. Boyd V. Boyd, 12 Misc. 119. Executor of a lessor who had a lease for life may bring an action. Van Rensselaer v. Hayes, 5 Den. 477. A mortgagee, or his assignee, or their representative, cannot maintain an action. Code, § 1498. 8 Eeal Actions. This applies also to a deed given which is in fact a mortgage. Carr v. Carr, 52 N. Y. 521. Nor can an action for dower be maintained in ejectment. § 1499. The State cannot recover lands belonging to a munici- pal corporation. People V. N. Y. Manhattan Beach R. R. Co., 84 N. Y. 565. Two persons claiming the land in hostility to each other cannot join as plaintiffs. Hubbell V. Lerch, 58 N. Y. 237. An infant, after arriving at his majority, cannot bring an action for lands sold by them without a prior act of disaffirmance. Voorhies v. Voorhies, 24 Barb. 150. A tenant in common cannot bring an action as against the other tenants without showing ouster. Code, § 1515; Edwards v. Bishop, 4 N. Y. 61. But if he shows ouster he can. Trustees, etc. v. Johnson, 66 Barb. 119. A receiver in supplementary proceedings has the legal title of the judgment debtor and can bring the action. Wing V. Dissel, 5 Hun, 190. Or a trustee who is entitled to the possession of lands may recover it for his beneficiary. Matter of Brewer, 43 Hun, 597. The people can bring an action in case of escheat, etc. Code, §§ 1977-1981. Defendants. If the property is actually occupied, the occupants thereof must be made parties defendants, and if not actually occupied, then any one exercising acts of owner- ship or claiming title thereto, or an interest therein must be. Code, § 1502; Hennessy v. Paulsen, 147 N. Y. 255. Actions in Ejectment. 9 A landlord, remainderman, reversioner or otherwise, holding adversely to the plaintiff, must be defendants. strong V. City of Brooklyn, 68 N. Y. 1-10. Whenever anyone enters upon and takes possession of the lands of another claiming title thereto; that is an unlawful entry and ouster, and he should be made party defendant. Leprell v. Kleinschmidt, 112 N. Y. 364. Where the deed is to a husband and wife, both are properly joined as defendants. Stewart v. Patrick, 68 N. Y. 450. A railroad which has taken possession of a street may be proceeded against in ejectment. Wager v. Troy Union R. R. Co., 25 N. Y. 526. The corporation and not the trustee of a religious society should be made the defendants. Lucas V. Johnson, 8 Barb. 244. A servant who actually occupied and possessed the premises, although for his employer, is a proper defend- ant; but if he does not actually occupy but is only work- ing it then he is not a proper defendant. Shaver y. McGrow, 12 Wend. 558. One claiming under authority of the United States is a proper defendant. Kaufman v. Lee, 106 U. S. 196. Parole claim of title is sufficient to make one a defend- ant under section 1502 of the Code. Abeel v. Van Gelder, 36 N. Y. 513. Parties occupying different stories of a building with no claim to a lease of the land, are properly joined. Pierce v. Ferris, 10 N. Y. 280. One lawfully in possession under other defendants is a proper party. Rank v. Levinus, 5 Civ. Pro. R. 368. All actual occupants must be joined as defendants. EUieott V. Mosler, 7 N. Y. 201; Danlhee v. Hyatt, 81 Hun, 238. 10 Eeai, Actions. None but the occupants are necessary parties. Bradt v. Church, 110 N. Y. 537. As to those jointly possessed joined as defendants. See Code, § 1516; DlUaye v. Wilson, 43 Barb. 261. It is not necessary to join parties who are not occu- pants, but the court in its discretion may direct others to be brought in. Code, § 452. When a defendant sets up by answer that he occupies in severalty with other defendants, or jointly, one or more distinct parcels, and other defendants possess other par- cels in severalty or jointly, the court may, upon applica- tion of plaintiff on terms, direct that the action be severed. Code, § 1516; Hennessy v. Paulsen, 12 Misc. 384. But this does not apply to apartments. Code, § 1517. Nor where defendant holds under other defendants. Code, § 1518. Pkocbedings. New parties. In order to bring in new parties it must be by motion, and notice thereof must be given to the adverse parties. Death of a party. Where, upon the death of a party, different persons suc- ceed to the decedent's title in different distinct parcels, the court may direct, upon motion of either party, that the action be divided, and the successors be substituted as plaintiffs or defendants. Code, § 1522. And if the plaintiff seeks to recover damages, the court may divide the action into two actions. Code, § 1523. But he may proceed under the last two sections or under sections 755 to 766 of the Code. Actions in Ejectment. 11 l)eatli of plaintiff. In case of the death of plaintiff the widow need not join as plaintiffs with the heirs. Ash V. Cook, 3 Abb. Pr. 389. If a motion to bring in new parties be made by an assignee of the cause of action, notice must be given to the opposite parties and to the executors of the party whom he claims to represent. Howard v. Taylor, 5 Duer. 604. If a motion is made to bring in representatives of the deceased party, notice must be given to the representa- tives, and upon aflfldavit setting forth the death and that they are the successors in interest. St. John V. Croel, 10 How. Pr. 263. And the title of the party to be substituted must be contested on the motion. Smith V. Zalinski, 26 Hun, 225. The pleadings should always be made a part of the motion papers. No supplemental complaint is required, but the court may direct that a summons and complaint be served if he sees fit. Code, § 760. Pleadings. Lis pendens. The plaintiff should file a notice of the pendency of the action with the complaint. Code, § 1524. Complaint. The complaint must describe the property claimed with common certainty, so that from the description, posses- sion of the property can be delivered to plaintiff. Code, § 1511. Damages. The plaintiff may demand and in a proper case recover damages. Code, § 1496. 12 Real, Actions. Such a case is where the plaintiff is entitled to the rents and profits or the value of the use and occupation. Code, § 1497. But he cannot recover damages for more than six years, nor for the value of the use of any improvements made by defendant or those under whom he claims. And improvements that are permanent may in good faith, by defendant holding under color of title adversely to the plaintiff, be offset against the damages, to the amount of such damages. Code, § 1531. Plaintiff must state that he is out of possession and that possession is unlawfully withheld, and that he has an immediate right to the possession. Taylor v. Crane, 15 How. Pr. 358; Trull v. Granger, 8 N. Y. 115. It is not sufficient to state that he is entitled to posses- sion; he must state the character of his estate; as in fee, for life, or for years, etc. Austin V. Schluyter, 7 Hun, 275; Sheridan v. Jackson, 72 N. y. 170. The allegation that plaintiff has the lawful title as owner in fee simple of the following described lands, and that the defendant is in possession thereof, and unlaw- fully withholds possession thereof from the plaintiff, and demands that defendant be adjudged to surrender pos- session of said land to the plaintiff, is sufftcient. Walter v. Lockwood, 23 Barb. 228. If an undivided interest is claimed it should be precisely stated. Cook V. Wardens of St. Paul's Church, 5 Hun, 293. But a defect in stating the amount or what interest, is amendable either before or after a verdict. Id. When damages are sought they must be set forth explicitly and in a separate paragraph. Seaton v. Dayis, 1 T. & C. 91. Actions in Ejectment. . 13 If for rents and profits, plaintiff must state that defend- ant has received them, and the amount and demand therefor. Code, § 1496; Livingston v. Tanner, 12 Barb. 481. If for the value of the use and occupation plaintiff must so state. Id. If brought for a condition broken the facts showing the breach of the condition must be alleged. Mayor, etc. v. Smith, 64 How. Pr. 89. The Answer. Authority to bring. The defendants may at any time before answering, require the attorney for plaintiff to produce his authority, and the case will be stayed till such authority is produced. Code Civ. Pro., §§ 1512, 1513 and 1514. The defendant may demur or answer. Under a general denial the defendant may disprove anything that it is necessary for the plaintiff' to prove. Weaver v. Barden, 49 N. Y. 286. May show that the plaintiff is estopped, but it would be better to state the matters which constitute the estoppel. Creque v. Sears, 17 Hun, 123, 125. May show plaintiff has no title, and that the title is in a stranger, although defendant does not connect himself with such title. Griffin v. L. I. R. R. Co., 101 N. Y. 348; Bloom v. Bur- dicli, 1 Hill, 130. If the defendant is an intruder or in possession by per- mission of the plaintiff, then he must set up the title on which he relies and connect himself with it. Adverse possession or that the plaintiff's deed is void for any reason, and defendant claims an equitable right, must all be pleaded. Ford V. Sampson, 30 Barb. 183; Ha.nsee v. Mead, 27 Hun, 162. 14 Eeal Actions. A denial that plaintiff has title is sufficient, and it is not necessary to state that his title is invalid. Terrell v. Wheeler, 12 N. Y. St. E. 597. That defendant is in possession as mortgagee or as assignee of the mortgage is a good defense. St. John V. Bumpstead, 17 Barb. 100. But the mortgagee must be rightfully in possession. Howell V. Leavitt, 95 N. Y. 617-621. Anything tending to show plaintiff is not entitled to the immediate possession is a good defense. Hunter v. Trustees of Sandy Hill, 6 Hill, 487. May set up that he is equitably entitled to retain pos- session, or the equitable owner, or entitled to a deed, or that he was the intended grantee, but omitted by mistake. Crary v. Goodman, 12 N. Y. 266; Hoppough v. Stubble, 60 N. Y. 430; Glacken v. Brown, 39 Hun, 294. And if he desires affirmative relief must set forth all facts that would entitle him to it. Dewey v. Hoag, 15 Barb. 365; Risley v. Rice, 40 Hun, 585; Terrell v. Wheeler, 12 N. Y. St. B. 597. Defendant cannot plead an escheat to defeat plaintiff's title. Croner v. Cowdrey, 139 N. Y. 471. Vendee under an executory contract of sale must plead his equitable title, and tender performance. Risley v. Rice, 40 Hun, 585. Defendant, under purchase on execution sale, must show judgment and filing, and that he was in continued possession under valid judgment. Kellogg V. Kellogg, 6 Barb. 126. Beply. If the defendant sets up a counterclaim upon which he demands an affirmative judgment or such as to defeat plaintiff's recovering for damages, then the plaintiff must make reply thereto. Code, § 1673. And the rule governing a reply is the same as in other actions. Code, §§ 514-516. Actions in Ejectment. 15 Proceedings. A defendant may demand authority for plaintiff's attor- ney to bring. Anti, p. 13; Code, §§ 1512, 1513 and 1514. A retainer from an agent is not enough unless such agent had authority from the principal to direct the com- mencement of the suit. Howard v. Howard, 11 How. Pr. 80; Mitchell v. Barnes, 22 Hun, 194. Receiver. The court has the power to appoint a receiver of the property and the rents and profits, and in a proper case may. People V. Mayor, etc., 10 Abb. Pr. 111. But as the appointment amounts practically to the dispossession of the defendant, the rule is that a receiver will not be appointed before judgment. Guernsey v. Powers, 9 Hun, 78. The manner of appointment is the same as in other actions. Injunction. An injunction may be granted to stay a prosecution by a grantee to recover lands embraced in a deed by misiake. Bush V. Hicks, 60 N. Y. 298. Also an injunction will issue when, after judgment plaintiff has ceased to own the premises, or that defendant has acquired some interest in equity that should be pro- tected, or that the judgment was obtained by fraud or collusion. Knox V. McDonald, 25 Hun, 268. To restrain defendant from committing waste or other damage to the property in question, an injunction will be granted. Code, § 1681; Spear v. Cutter, 5 Barb. 486. Survey. Whenever it becomes necessary to enter upon lands to make a survey for any purpose, the court may so direct by order upon application of either party. Code, §§ 1682, 1683 and 1684. 16 Eeal Actions. Jury. The action is one triable by a jury. Code, § 968. Proof necessary by a tenant. Where the action is brought by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually ousted him, or did some other act amounting to a total denial of his right. Code, § 1515; Edwards v. Bishop, 4 N. Y. 61. The issues, mode of trial, settling issues of fact or of law, are the same as in other civil actions, as found under sections 963 to 981, Code Civil Procedure. The verdict. The verdict, report or decision in favor of plaintiff must specify his estate, whether it is in fee, or for a term of years, or for life, stating for whose life, or the duration of the term if less than a fee. Code, § 1519. In an action to recover for possession for rent in arrears, the verdict, report or decision, must fix the amount of rent in arrears. Code, § 1507. If the right or title of plaintiff expires after commence- ment and before trial, and he would have been entitled to recover but for the expiration, then the verdict, report or decision must be rendered according to the fact, and he is entitled to damages to the time his title expires. Code, § 1520. The title referred to in section 1520 has reference to the estate or interest which is in the possession of plaintiff, or represented by him at the time, and not to the owner thereof. If the estate expires, judgment for possession will not be given against defendant, but if the estate con- tinues to exist then judgment for possession will be ren- dered against defendant, and if plaintiff recovers then he Actions in Ejectment. 17 holds it as the trustee for the owner who, since commence- ment of the action has become the real party in interest. Van Rensselaer v. Owen, 48 Barb. 61. Defendant need not file a supplementary answer to avail himself of this section. Lang V. Wilbraham, 2 Duer, 171. When plaintiff's title expires after judgment and before afiftrmance on appeal, execution for possession will be stayed. Olendorf v. Cook, 1 Lans. 37. Judgments. Judgment may be entered by default, but cannot be taken without application to the court, and where dam- ages are demanded must be ascertained by the court, and the amount must be stated in the judgment. Code, i 1507. Except in a case where it is otherwise expressly described (such as an application for a new trial), a final judgment rendered upon a trial of an issue of fact is con- clusive as to the title upon each party against whom it is rendered and every person claiming through or under him by title accruing either after judgment or the filing of the lis pendens. Code, § 1524; Roberts v. Baumgarten, 126 N. Y. 336. A final judgment for the plaintiff rendered in an action othermse than upon a trial of an issue of fact is, after three years from the filing of the judgment roll, conclusive upon the defendant and every person claiming from, through or under him by title, after judgment roll is filed or the filing of the notice of action. Code, § 1526; Howell v. Leavitt, 90 N. Y. 238. The judgment should follow the verdict, or conclusions of law should state the estate and direct that plaintiff recover possession and whatever sum has been awarded as damages and costs. The premises should be described so that the sheriff can identify them, and if the premises are subject to an ease- 2 18 RBAi Actions. ment, it should state that the possession of plaintiff is subject to such easement. Eeformed Church v. Schoolcraft, 65 N. Y. 134. The nature of plaintiff's interest should always be stated, and if plaintiff's title has expired, judgment should be only for damages to such time. Code, § 1520. Or if possession is awarded to plaintiff then it should state that he holds it in trust for the true owner. And it must contain an order that the sheriff put plaint- iff in possession if possession is awarded. Code, § 1675. A judgment for the possession takes all structures wrongfully erected thereon. Delancey v. Piepgras, 141 N. Y. 88. Costs. Either party, upon a verdict in their favor, are entitled to costs, of course. Code, §§ 3228 and 3229. Defendant is not entitled to costs where the action is maintained by a grantee, his heir or devisee, in the name of the grantor, or his heir, unless defendant is entitled to costs under section 3229 of the Code. Code, § 1501. And plaintiff, who maintained the action, may be com- pelled to pay the same. Code, § 3247. Costs must, upon application by either party, be certi- fied by the judge presiding or the referee, which certifi- cate is the only competent evidence before the taxing ofl&cer. Code, § 3248. Amount of costs are the regular taxable costs, together with disbursements, and extra allowance will only be allowed upon the ground of a difficult case where a defense has been interposed. Code, § 3253. Actions in Ejectment. 19 Execution. Judgment is enforced by execution. Code, § 1240. The execution must particularly describe the property and designate the party to whom possession is awarded, and must direct the sheriff to deliver the possession to the party entitled thereto, and if a sum of money is awarded it may be included in the same execution or a separate execution may issue therefor omitting the direction to deliver the possession; if both are included in the same, the usual direction as to collecting the money in addition to the direction to deliver possession. Code, §§ 1373 and 1511. Proceedings after judgment. Any time within six months after possession has been awarded plaintiff and delivered to him on execution in proceedings for rent in arrears, the defendant, or any per- son who has succeeded to his interest, or a mortgagee or assignee of the lease, who was not in possession when final judgment was rendered, may pay or tender to the plaintiff or his representative, or pay into court the rent, costs and disbursements and interest, and within three months after paying said sum the person so paying or his representatives, may apply for an order for posses- sion, and upon proof of the facts, etc., the court must make an order directing that possession be delivered to the applicant. Notice of such application must be served upon plaintiff's attorney, and if possession of the property has been delivered to plaintiff, the order must offset the sum which plaintiff has or might have made out of the property as against the rent accruing after judgment, and the repayment to the applicant the balance, if any, of the money paid into court. Code, §§ 1508, 1509 and 1510. New trials. A new trial in these actions may be had upon any ground applicable to any other action, and in addition thereto, the court at any time within three years after a 20 EBAii Actions. judgment upon an issue of fact upon application of the party, his heirs, devisees or assigns, against whom the judgment was rendered, and upon payment of all costs and damages miist make an order granting a new trial. And the court within two years after the second final judgment, upon like application, may make an order granting a second new trial, but the court must be satis- fled that justice will thereby be promoted. Code, § 1525. This section does not apply to ejectment for rent in arrears. Code, § 1528. Where an answer has been interposed, a judgment upon an inquest is within this section. Sacid V. O'Connor, 47 Super. 53. The application is made at Special Term upon affidavits setting forth the facts, that judgment was rendered and roll flled against the party applying, or his predecessor or assignor, and that three years have not elapsed, and that all costs and damages were paid. Post V. Moran, 1 Civ. Pro. R. 222. The first new trial is a matter of right, and no reason need be given for granting it. Harris v. Waite, 54 How. Pr. 113. The time for computing an application is from the entry of the judgment, and not from a judgment of aflftrmance. Chautauqua Co. Bank v. White, 23 N. Y. 347. Where one bought property subject to a mortgage and has been evicted, and the mortgage is afterwards fore- closed, the purchaser under the mortgage is an assignee, and entitled to a new trial. Howell V. Leavitt, 90 N. Y. 238. Upon the application for a second new trial the appli- cant must show that justice requires it, and that the right of the parties will be more satisfactorily ascertained and established. Keeler v. Dennis, 39 Hun, 18; Brown v. The Root Mfg. Co., 148 N. Y. 294; De Lancey v. Plepgras, 141 N. Y. 88. Actions in Ejectment. 21 Each party is not entitled to new trials; only two new trials can be granted. Harris v. Wait, 54 How. Pr. 113. The order granting the second trial may be reviewed by the Appellate Court, but not by the Court of Appeals. Keeler v. Dennis, 39 Hun, 18; Evans v. Millard, 16 N. Y. 619. Appeal. Appeal from a judgment entered by default can be taken within five years, after the filing of the judgment roll, upon application in the same manner as for a second new trial. Code, § 1526. This section does not prevent an application to open default as in other actions. The time to appeal, as provided in section 1526, does not begin to run in case of defendant's disability, such as minority, incapacity, etc., until after said disability is removed. Code, § 1527. Upon a new trial being granted, defendant may show any matter in defense which he might be entitled to show to recover possession as if he were plaintiff. Code, § 1530. Plaintiff's title is not affected by the granting of a new trial, and if defendant recovers final judgment upon said trial, he may have execution as if he were plaintiff. Code, § 1529. 22 Eeai< Actions. PRECEDENTS. Lis Pendens in Ejectment. (See text, page 11.) SijPKEMB Court — County of Fulton. JOHN DOE, Plaintiff, against RICHARD ROE, Defendant. Notice is hereby given that an action has been com- menced in the Supreme Court of the State of New York, by the above-named plaintiif against the above-named defendant, and that it is now^ pending in said court; and, that the object of said action is to recover a judgment affecting the possession of the following described prop- erty, to wit: (Description); that said premises were, at the time of the commencement of this action, and at the time of the filing of this notice, situated in the county of , and contained acres of land, more or less. Dated at this day of , 189 . Plaintiff's Attorney. Office and post-office address. To the County Clerk of the County of Sir. — You are hereby directed to index the foregoing notice to the name of , defendant (or defendants) in the above-entitled action. Plaintiff's Attorney. Forms or Precedents in Ejectment, 23 Complaint for Wrongful Possession. (See text, page 12; and as to parties plaintifE and defendant, see text, pages 6 to 9.) Supreme Court — Fulton County. JOHN doe, Plaintife, against RICHARD ROE, Defendant. The plaintifE complains of the above-naxaed defendant, and respectfully shows to the court the following facts as constituting his cause of action: First. Plaintiff alleges that he is and was, at the time of the commencement of this action, seized in fee (or here state what interest the plaintifE has, such as for life or as remainderman, or whatever estate he may have that would entitle him to the immediate possession), and entitled to the possession of the following-described prop- erty, situate in the county of Fulton, and State of New York, bounded and described as follows, to wit: (Here describe the property, giving suflflcient and specific description so that a sheriff, upon execution, can place the plaintiff in possession of the exact property sued for), being the owner and entitled to the possession of that undivided part thereof, to wit: (Here describe the amount of interest for which the action is commenced, either the whole or an undivided portion thereof), and entitled to the possession of the same. Second. Plaintiff further alleges that the defendant was, at the time of the commencement of this action, in possession of said property (or of the interest thereof, hereinbefore described), and unlawfully withholds the same from the plaintiff to the damage of the plaintiff in the sum of dollars (| ). Wherefore, plaintiff demands judgment against the defendant for the recovery of the said described premises 24 Eeaij Actions. and the possession thereof with dollars (I ) damages for withholding the same, and the costs of this action. Plaintiff's Attorney. Office and post-office address, (Verification.) Complaint; Unlawful Entry and Holding. (See text, page 12.) Stjpbemb Court — Fulton County. JOHN doe, Plaintiff, against RICHARD ROB, Defendant. The plaintiff complains of the above-named defendant, and for his cause of action states the following facts to the court: First. That he is the owner in fee and entitled to the immediate possession of the following described prop- erty, to wit: (Description.) Second. That on and prior to the first day of , 189 , plaintiff was possessed and entitled to the posses- sion of said premises, and being so possessed thereof, the defendant did, on or about the day of , 189 , enter into, and upon said premises, and did take possession thereof, and is unlawfully in possession thereof, and is unlawfully withholding from plaintiff the possession of the same to plaintiff's damage in the sum of 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. FoEMS OR Precedents in Ejectment. 25 3. That he recover of the defendant the sum of dollars (| ) his damages, besides the costs of this action. (Verification.) Plaintiff's Attorney. Complaint for State Lands. (See text, pages 2 and 5.) Supreme Court — County op THE people of THE STATE OF NEW YORK, Plaintiff, against JOHN DOE, Defendant. The plaintiff complains of the defendant and alleges: First. On information and belief, that at the time of the commencement of this action and prior thereto, plaint- iff was the owner in fee and lawfully entitled to the imme- diate possession of a piece or parcel of land situate in the town of , county of and State of New York, being known and described as follows: (Description.) Second. Plaintiff further alleges, on information and belief, that defendant, prior to the commencement of this action, unlawfully and wrongfully entered upon the above-described premises and erected a building or build- ings thereon, and additions thereto, and was and is wrong- fully and unlawfully in possession of said property, and still retains and unlawfully withholds the possession thereof from plaintiff to plaintiff's damage of f Third. Plaintiff further alleges, on information and belief, that said above-described premises, of which defendant is in the unlawful and wrongful possession. 26 REAii Actions. properly forms a part of and is a part of the forest pre- serve of the State of New York, and were at the time defendant went into possession vacant, uninclosed- and unoccupied wild lands. Fourth. Plaintiif further alleges that this action is brought pursuant to and on the order of J. Warren Pond, as Chief Fish and Game Protector and Forester of the State of New York, duly made, dated August 18, 1896, directed to the plaintiff's attorney herein, ordering the bringing of this action in the name of the plaintiff to recover the possession of the above-described premises. Wherefore, plaintiff demands judgment against the defendant for the possession of the said described prem- ises, with I damage for withholding the same, together with costs and disbursements. CLAEENCE W. SMITH, Plaintiff's Attorney, Johnstown, N. Y. (Verification.) Complaint by Joint-Tenant or Tenant in Common. (See text, page 6.) Supreme Court — County of Fuxton. JOHN doe, Plaintiff, against RICHARD ROE, Defendant. The plaintiff complains of the defendant and alleges as follows : First. That he, together with , of the of and county of and State of , are the owners of, and entitled to the possession of all that property hereinafter described, as joint-tenants (or tenants in common), by Forms or Precedents in Ejectment, 27 virtue of the fact that this plaintiff, together with and , are the heirs-at-law, or devisees of one who, during his lifetime was the owner of, and entitled to the possession of said property; that said departed this life on the day of , 189 , leaving a will, whereby he willed to this plaintiff and and , all of said property, which said will is hereto annexed and marked " Exhibit A," and is to be taken as a part of this complaint, the same as if herein set forth in full (or that he died intestate, and that said plaintiff and the other parties herein, are the only heirs and next of kin of said decedent, and are the owners and entitled to the posses- sion of said property by virtue thereof) ; (or that the said plaintiff and said other parties are grantees of the said described property by virtue of a deed made and executed by to this plaintiff and the other parties, a copy of said deed is hereto annexed and marked " Exhibit A," and is to be taken as a part of this com- plaint the same as if herein set forth in full). Second. Plaintiff further alleges that he and the other parties named herein are the owners of and entitled to the possession of said property; and that the defendant herein wrongfully and unlawfully entered into the possession of said property described as follows, to wit: (Description); and that he is still in the possession and unlawfully and wrongfully withholds the possession of said described property from this plaintiff, and to the plaintiff's damage of dollars (| ). Third. Plaintiff further alleges that he is the owner of and entitled to the undivided one-third share of said described property by virtue of the title hereinabove set forth. Wherefore, plaintiff demands judgment, and that he be adjudged the possession of the undivided one-third share of said property; and that he recover of the defendant the 28 Eeai. Actions. sum of dollars damages, for the withhold- ing of the said property, together with the costs of this action. Plaintiff's Attorney. Office and post-office address, (Add verification in usual form.) Complaint by Grantee in the Name of His Grantor. (See text, page 4). Supreme Court — County of Ful,ton. JOHN doe, PlaiiitifE, against RICHARD ROB, Defendant. Plaintiff complains of the defendant and alleges: First. That on the day of , 189 , he was the owner of and entitled to the possession of all of the following described real estate, situate in the county of Fulton and State of New York, bounded and described as follows, to wit: (Description.) Second. That at the time he was the owner of, and entitled to the possession of said property, he did on the day of , 189 , by an instrument in writing, duly convey unto , all of the above-described property; and that at the time of said conveyance the same was held adversely by the defendant herein; and that said defendant is unlawfully and wrong- fully in the possession of, and occupies the said property, and holds the same by adverse title, to this plaintiff's damage. Third. Plaintiff further alleges that said occupancy and holding by said defendant is illegal and void; and FoKMS OR Precedents in Ejectment. 29 that he was entitled to said property at the time of the conveyance hereinabove set forth. Fourth. Plaintiff further alleges that he brings this action to recover the possession of said property for, and on behalf of, and for the benefit of , his grantee. Wherefore, plaintiff demands judgment herein, that he be declared the owner of, and entitled to the possession of said property; and that the title of said defendant be declared null and void; and for such other and further relief as to the court seems just and proper. Plaintiff's Attorney. Office and post-office address. (Verification.) Notice of Intention to Re-enter. (See text, page .) Supreme Court — Fulton County. (Title of the cause.) To (lessee) : Sir. — ^Take notice that default has been made in the payment of the rent reserved and payable under, and by virtue of the lease of real property made and executed by and between and (or grantor, lessor, or his heirs, devisees or assigns), on the day of , 189 ; and as said owner of said prem- ises and entitled to the rent thereof, I do hereby intend to re-enter upon the lands described in said indenture and lease, in pursuance of the covenants, reservations and conditions therein contained (or here state that there is default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of the rent now due, as pro- 30 Eeal Actions. vided by the provisions given to me, as lessor of said property). Dated at this day of , 189 . (Note. — This notice must be served in vrriting at least fifteen days before the commencement of the action, upon the defendant personally, or by leaving it at his dwelling house or on the premises, with a person of suitable age and discretion, or if he has no dwelling house on the premises by posting it in a conspicuous place upon the premises.) Complaint in an Action to Re-enter Property Under a Lease. (See text, page .) Supreme Court — County of Fulton. (Title of the cause.) Plaintiff complains of the defendant and states the fol- lowing facts that constitute this cause of action : First. Plaintiff alleges that on the day of , 189 , (state that he was the heir, devisee or assignee or lessor, or grantor), he made and executed to the defendant herein, a certain indenture and lease of the following described property, to wit: (Description); that the said lease was made and executed between said parties hereto, and is as follows, to wit: (Here insert a copy of the lease.) Second. That by the terms of said lease there was given and reserved to the plaintiff herein, the right in case of default of the payment of the rent in said lease, a stipu- lation to distrain a sufficiency of the goods and chattels of the defendant to pay any and all rents due, and in default thereof the right of re-entry (or here state that six [6] months rent or more is in arrears upon the ground Forms or Precedents in Ejectment. 31 therein stated in said lease, reserving the right in said lease of re-entry at any time upon failure to pay the rent, as set forth in said lease upon the conditions therein stated). Third. Plaintiff further alleges that no part of the rent reserved and conditioned to be paid as aforesaid, and falling due on the day of , 189 , has ever been paid ; and that there is now^ due and owing to the plaintiff thereof for rent; and that there is still due and unpaid the sum of dollars (f ). Fourth, Plaintiff further alleges that prior to the com- mencement of this action, and more than fifteen days prior thereto, to wit, on the day of , 189 , he served or caused to be served upon the defend- ant a written notice of his intention to re-enter upon the possession of said premises, which said notice, a copy thereof is hereto annexed, and is as follows, to wit: (Set- forth a copy of said notice.) Fifth. That the defendant was, at the commencement of this action, in possession of said premises, having entered upon the same as party of the second part, accord- ing to the terms and conditions of said indenture and lease; and that as such lessor he has not a sufficiency of goods and chattels, which plaintiff, as the owner of said premises, can distrain in satisfaction of the said amount now due, and owing (or here state that the amount of said rent now due is for six months or more in arrears). Wherefore, plaintiff demands judgment against the defendant, and that he be entitled to recover the posses- sion of said premises, together with the costs of this action. Attorney for Plaintiff. Office and post-office address. (Add verification in usual form.) 32 KEAii Actions. Order Dismissing the Complaint Upon the Payment or Tender of Kent. (See text, page .) At a Special Term of the Supreme Court of the State of New York, held at the in the city of , on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — County of Fulton. (Title of the cause.) It appearing to the court that heretofore and on the day of , 189 , an action was com- menced by the above-named plaintiff against the above- named defendant, to recover the possession of certain premises in said complaint described, and in default of the payment of rent by, and according to the conditions and reservations of a certain lease as in said complaint set forth, and there fully described; giving to the plaintiff the right to re-enter and take possession of said premises in default of the payment of said rent; and it appearing to the court on the day of , 189 , the defendant has paid or tendered to the plaintiff or his certain attorney (or has paid into court), all of the rent therein, in arrears as stated, together with the interest thereon, and the costs of this action as taxed at dollars (| ); now, therefore, on motion of F. L. A., attorney for defendant, and , attorney for plaintiff in opposition thereto, it is Ordered, adjudged and decreed. That the complaint herein and all other proceedings herein are hereby dismissed. J. S. C. Enter in Fulton county. FOKMS OR PBEOEDENTS IN EJECTMENT. 33 Verdict, Keport or Decision in Favor of the PlaintifE to Recover for Rent Due. (See text, page 16.) SUPKEME OOURT — OOUNTY OF FULTON. (Title of the cause.) (The verdict, report or decision), do hereby find in favor of the plaintiff and against the defendant; and that the defendant is indebted to the plaintiff for rent in the amount of dollars (| ). Judgment on Default to Recover Possession by Landlord. At a Special Term of the Supreme Court held at the in the city of , on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — County of (Title of the action.) It appearing to the court that on the day of , 189 , the above-entitled action was duly commenced, by the service of a summons and complaint upon the defendant herein, by personally delivering to, and leaving with him a true copy of said summons and complaint; and it further appearing to the court that said defendant has failed to appear or answer the said com- plaint, and that more than twenty (20) days has elapsed since said service was made, and that said defendant is in default, and has not appeared or answered said com- plaint; now, on motion of 0. W. S., attorney for the plaint- iff, it is Ordered, adjudged and decreed. That the said defend- ant is in arrears in the payment of the rent due and owing 3 34 Keax. Actions. to said plaintiff in the amount of dollars (I ), together with interest thereon from the day of ; and it is further Ordered, adjudged and decreed, That the plaintiff is entitled to judgment for the possession, and is hereby let into possession of said premises, and that he shall recover of the defendant the sum of dollars, as rent due thereon, together with his costs of this action, to be taxed by the clerk, and that execution may issue therefor. ,t t o M. L. S., J. S. 0. Affidavit of Defendant, Paying Money Into Court. (See text, page 19.) Supreme Cotjbt — Fxjl,ton County. (Title of the cause.) State of New York, ) ^^ . County of Fulton, S , being duly sworn, says that he is the defendant in the above-entitled action; and that six months has not elapsed since the entering of the judg- ment in the above-entitled action, giving to the plaintiff in said action the possession of the following described property, to wit: (Insert description); nor since possession of said property in said action, which was maintained to recover possession, by reason of the failure of the defend- ant to pay rents as provided in the lease; and since said property has been delivered to the plaintiff by virtue of the execution issued upon judgment rendered therein. Deponent further says that he has paid (or tendered to the plaintiff, his executors, administrators, his certain attorney, or paid into court for the use of the plaintiff herein), the amount of dollars (| ), that Forms or Precedents in Ejectment. 35 being the amount of rent in arrears as stated in said judg- ment and the costs of this action, with interest and all other charges incurred by the plaintiff; and that three (3) months have not elapsed since the payment or tender of said monies as aforesaid. Subscribed and sworn to before me this day of , 189 . E. J. O'C, Notary Public. Notice of tlie Application to Apply to the Court for Possession. (See text, page 19.) Supreme Court — County of Fulton. (Title of the cause.) To Take notice that upon the affidavit hereto annexed and duly served upon you, the undersigned attorney for the herein will apply to this court at a Special Term thereof, to be held in the city of , on the day of , 189 , at 10 o'clock A. m., or as soon thereafter as counsel can be heard, for an order directing that possession of all the property as set forth in said affidavit be delivered to Attorney for Office and post-office address, 36 Eeax, Actions. Order Directing Property to be Delivered to Applicant. (See text, page 19.) At a Special Term of the Supreme Court of the State of New York, held at the chambers of Mr. Justice , in the city of , on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Coubt — Fulton County. (Title of the cause.) It appearing to the court that upon the day of , 189 , judgment was duly entered in the above-entitled action, wherein was plaintiff, and was defendant, ordering and directing that the possession of certain premises described in said judgment be delivered to the plaintiff therein; and that he have and recover of the defendant the sum of dollars (| ), as the amount of the rent in arrears, together with the sum of dollars (| ), costs in said action, and interest and all other charges incurred by the plaintiff, and it further appearing to the court that within six (6) months after execution had issued upon said judgment and the property delivered upon said execution to the plaintiff, that the said sum of dollars had been paid into court (or been ten- dered to the plaintiff, his executors, administrators, heirs or certain attorney), being the amount of rent in arrears as stated in said judgment, together with the costs of this action, and interest thereon, and all other charges in- curred by the plaintiff; and it further appearing to the court that within three months after said payment (or tender), defendant (or whoever succeeded to defendant's interest), gave due notice, which were duly served upon plaintiff's attorney herein, that he would apply to this court at this term for an order directing that the posses- FoKMS OR Precedents in Ejectment. 37 sion of said property be delivered to him as applicant; now, on motion of R P. A., attorney for said applicant, and H. D., attorney for plaintiff in opposition therto, it is Ordered, adjudged and decreed. That said applicant be and he hereby is let into the possession of all of said prop- erty, and it is hereby directed to be delivered to the said , to have and hold the same and enjoy the same according to the terms and conditions of said origi- nal lease herein. M. L. S., J. S. C. Enter in Fulton. (Note.— See text, page 19, as to set-off, where plaintiff has been in possession.) Affidavit on Succeeding to Title. (See text, pages 10 and 11.) Supreme Court — Countt of Fulton. JOHN doe, PlaintifC, against RICHARD ROB, Defendant. [ ss.. State or New York, County of Fulton, , being duly sworn, says that he is the (heir-at-law, devisee, next of kin, or assignee of plaintiff), and that after the commencement of this action, and on or about the day of , plaintiff died, leaving a last will and testament, which was afterwards admitted to probate by the surrogate of the county of Fulton, the county in which said deceased resided at the time of his death; and that deponent is the sole heir-at- law of said deceased, and has succeeded as such to the title and interest of said deceased in and to said real es- 38 Eeal Actions. tate (or here state what title and right deponent may have), and he asks that said action be divided, and that he may be substituted as plaintiff, in the place and stead of , plaintiff, in the action relating thereto. Sig. (Jurat.) Motion to be Substituted. (See text, page 11.) Supreme Court — Fulton County. JOHN doe, Plaintiff, against RICHARD ROB, Defendant. To , Defendant's Attorney: Take notice that I will move the court, at a Special Term of the Supreme Court, to be held at the , in the city of , on the day of 189 , for an order directing that the above-entitled ac- tion may be divided; and that I may be substituted as plaintiff therein, in the place and stead of , plaintiff, who died since the commencement of this action; that said motion is based upon the af&davit of , which is hereto annexed, and the papers and pleadings herein. Dated at , this day of , 189 . Attorney for Applicant. FoEMS OR Precedents in Ejectment, 39 Order to Bivide the Action and to Substitute Plaintiff. (See text, page 11.) At a Special Term of the Supreme Court of the State of New York, held at the chambers of the Hon. , in the city of , on the day of , 189 . Present — Hon. M. L. K., Justice. Supreme Court — Pulton County. JOHN DOE, Plaintiff, against RICHARD ROE, Defendant. On reading and filing the affidavit of , verified on the day of , 189 , by which it appears that , the plaintiff in the above-entitled action, has died since the commencement of this action ; and that has succeeded to the title and interest of said deceased party, in and to different and distinct parcels of the premises so to be recovered in this action; and due proof of service of a copy of said affidavit and notice of this motion having been duly served upon , at- torney for the defendant herein, and upon all the plead- ings and papers in said action, now, on motion of , attorney for said applicant, it is Ordered, That the said action be divided into separate actions; one by said , as plaintiff and against the defendant, for the recovery of the parcel to which he has succeeded, and the other by said against the defendant for the recovery of the said parcel to which he has succeeded, as said parcel is respectfully described and set forth; and that be and he hereby is adjudged to be substituted in the place and stead of 40 Ebal Actions. , the deceased plaintiff in this action, and that an order be entered accordingly. J. S. C. Enter in Pulton. Affidavit to Produce Authority. (See text, page 13.) Supreme Court — County of Fulton. JOHN DOE, Plaintiff, against RICHARD ROE, Defendant. State of New Tokk, ) County of Fulton, ) Richard Eoe, being duly sworn, says that he is the de- fendant in the above-entitled action; and that there has not been served upon him any authority on behalf of plaintiff's attorney, whereby and showing that said attor- ney has any right or authority to commence, on behalf of said plaintiff, the above-entitled action, as he is in- formed and verily believes said attorney has no authority herein, to commence said action, and therefore asks the court for an order directing said attorney to pro- duce such evidence of authority. Subscribed and sworn to before me this day of , 189 . E. J. O'C, Notary Public, Fulton County. Forms or Precedents in Ejectment. 41 Order to Produce Authority. (See text, page 13.) At a Special Term of the Supreme Court of the State of New York, held at the chambers of M. L. S., Justice of the Supreme Court, in the city of Amsterdam, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — Fulton County. JOHN DOE, Plalntifie, against RICHARD ROE, Defendant. It appearing to the court upon the affidavit of Richard Eoe, defendant in the aboye-entitled action, that , attorney for the plaintiff herein, has no authority to bring the above-entitled action in the name of the plaintiff, and no authority to commence said action ; therefore, it is Ordered, That said attorney is hereby or- dered and directed to produce such evidence of his author- ity to commence said action as vrill satisfy this court; and that all proceedings herein are stayed on the part of the plaintiff until such evidence is produced. Enter in Fulton county. M. L. S., J. S. C. 42 Real Actions. Afiadavit of Authority to Bring Action. (See text, page 13.) Supreme Court — County of Fulton. JOHN DOE, PlalntifC, against RICHARD ROE, Defendant. State of New York, ) . County of Fulton, ) , of Johnstown, N. Y., attorney and counselor-at-law, being duly sworn, says that he is the attorney for the plaintiff in the above-entitled action, and has been duly authorized by him to bring this action in his name; a copy of said authority is hereto attached (or set out in full the authority from the plaintiff authorizing the attorney to bring the action herein in his name) ; that the said writing was duly signed and delivered to said de- ponent on the day of , 189 , duly authoriz- ing him, the said deponent, to bring the above-entitled action. Sig. (Jurat.) Notice of Authority. (See text, page 13.) SxjpRBMB Court — Fulton County. JOHN DOE, Plaintife, against RICHARD ROE, Defendant. To Richard Eoe, the defendant in the above-entitled action, and , his Attorney: Gentlemen. — Take notice that the above is a copy of the affidavit of the plaintiff's attorney herein, setting Forms or Precedents in Ejectment. 43 forth his authority, to bring the above-entitled action in the name of the plaintiff herein. Plaintiff's Attorney. Dated at this day of , 189 . Answer of Defendant Setting up Title. (See text, page 14.) Supreme Court — Fulton County. JOHN DOE, PlaintlfC, against RICHARD ROE, Defendant. The defendant for answer to the plaintiff's complaint herein : First. Denies that he has any knowledge or informa- tion as to paragraphs Nos. in plaintiff's com- plaint, suflflicient to form a belief. Second. Defendant, for further answer to plaintiff's complaint, alleges that he entered into possession of said premises under claim of title, exclusive of any other right to said claim, upon a written instrument, to wit, a deed from one to , being a conveyance of the premises as set forth in plaintiff's complaint (or set out fully defendant's title or source of title), for the fol- lowing described lands and premises, viz. : (Description.) Third. Defendant further alleges that he has been in continued and untinterrupted occupation and possession of the premises thereinabove described in said deed, and in plaintiff's complaint for twenty (20) years or upwards last, before the commencement of this action (or allege that defendant has been in uninterrupted possession of a 44 Eeal Actions. part of said premises, describing the part of which he claims title). Fourth. Defendant further alleges that during the time or times he has been occupying said premises, and was in possession thereof, he placed thereupon permanent improvements, believing that he had a good and valid title to said lands and premises ; and that said permanent improvements were placed thereon by him under said title to the amount and value of dollars (| ). Wherefore, defendant asks for a dismissal of plaintiff's complaint, and for costs of this action. I. That if the court should find he was not entitled to hold said lands, and was not entitled to the possession thereof, he should be allowed for the permanent improve- ments thereof to the amount of dollars placed by him upon said lands and premises. II. For such other and further relief as to the court seems just. Defendant's Attorney. Office and post-office address. (Verification.) Answer to an Action by tlie People. (See text, pages 5 and 13.) Supreme Court — Fulton County. THE PEOPLE of THE STATE, Plaintiff. against JOHN DOE, Defendant. The defendant, John Doe, answers the plaintiff's com- plaint in this action, entitled above, as follows: FoKMS OK Precedents in Ejectment. 45 First. This defendant denies, upon information and be- lief, all the allegations, and each and every allegation thereof contained, designated as items or paragraphs " First," " Second " and " Third," therein. Second. This defendant denies that he has any knowl- edge or information thereof sufficient to form a belief as to all and each and every allegation contained in the part or portion of the plaintiff's complaint designated as item or paragraph "Fourth" therein; and this defendant al- leges, upon his information and belief, that the alleged " Chief Fish and Game Protector and Forester of the State of New York," had no legal right or authority to direct or order this action to be commenced as alleged in plaintiff's complaint, and this action was never legally authorized to be commenced or prosecuted, and is not now legally pending or authorized to be prosecuted in the name of the present designated plaintiff, or by Clarence W. Smith, as attorney for the plaintiff, and that juris- diction has never been conferred upon this court to hear and determine the same between the said parties hereto. Third. This defendant alleges, upon information and belief, that at the time and times mentioned in the plaint- iff's complaint, he was, for a long time prior thereto, and ever since has been, and still is, the lawful owner and oc- cupant, and in actual and lawful possession of the lands and premises mentioned in said complaint, lawfully claim- ing to own, hold, occupy and possess the same and the title thereto, adversely to the plaintiff and all other per- sons or parties; and that for forty years or more prior to the commencement of this action the defendant, his grantors, and his and their grantors, and his and their grantors and predecessors in title and interest lawfully owned, occupied, possessed and claimed to own, hold, oc- cupy and possess the same and the title thereto, adversely to the plaintiff and all other persons and parties. 46 Eeai Actions. Fourth. This defendant further alleges, as a partial defense, that prior to the commencement of this action, while he was holding and in actual possession of the lands and premises mentioned and described in the plaintiff's complaint, under color and claim of title adversely to plaintiff, he made permanent improvements thereon in good faith, by erecting and making valuable and perma- nent buildings and betterments upon and about the said premises in good faith, of the value of |4,000, which he asks to have offset and allowed to him in reduction of the damages, if any, that the plaintiff may be entitled to re- cover in this action. Wherefore, the defendant demands judgment in this action : I. That the plaintiff's complaint herein be dismissed, with costs of the action. II. That the defendant may have such other or further judgment and relief herein as he may be entitled to or the court may grant. Z. S. WESTBROOK, Attorney for Defendant, (Verification.) Amsterdam, N. Y. Answer That One or More of the Defendants Occupy in Severalty, (See text, pages 13 and 14.) Supreme Cotirt — County of Fulton. JOHN DOE, Plaintiff, against RICHARD ROB et al.. Defendants. The defendant, Richard Roe, for answer to the plaint- iff's complaint herein: First. Denies that he has any knowledge or informa- tion as to paragraphs Nos. of plaintiff's com- plaint sufilcient to form a belief. Forms or Precedents in Ejectment. 47 Second. The defendant, for a separate answer to said plaintiff's complaint, alleges that he and , one of the other defendants herein, occupy as joint-tenants, and as owners thereof, and are entitled to all that certain separate piece or parcel of said described lands as set forth in plaintiff's complaint, which said distinct parcel is described as follows, viz.: (Description); and, that the other defendants occupy and possess the other parcel of said described land in severalty (or jointly). Wherefore, defendant asks for a dismissal of plaintiff's complaint, together with its costs. Defendant's Attorney. Office and post-office address, (Add verification in the usual form.) Verdict, Keport or Decision to Recover Possession. (See text, page 16.) Supreme Coukt — County of Fulton. JOHN DOE, Plaintiff, against RICHARD ROE, Defendant. The above-entitled matter having been submitted to the jury (or submitted to me as referee, or to the court), we do hereby find a verdict in favor of the plaintiff, and against the defendant; and that said plaintiff have, and recover of the said defendant, the possession of the fol- lowing described property, to wit: (Description); and we do further find that the estate of the plaintiff in said property is in fee (or for life, or for a term of years; and if for life, that it is for and during the life of A. B., and 48 Keal Actions. if for a term of years, that it is for and during the term of years) ; and that the plaintiff is entitled to re- cover of the defendant the sum of dollars as damages for the withholding of the said property. Verdict irpon. tlie Expiration, of PlaintifE's Bight to Maintain Action. (See text, page 16.) Supreme Ooukt — County of Fui^ton. (Title of the cause.) The above-entitled action having been submitted to the jury (or to me, as referee, or to the court), we do hereby find a verdict (or report, or decision), in favor of the plaintiff and against the defendant; that since the com- mencement of this action, and before the trial, the right of said plaintiff to maintain said action has expired; he is therefore entitled to recover of the defendant the sum of dollars ($ ), as damages, for the with- holding of the property from the day of , 189 , to the day of , 189 , the time when his right to said title so expired. Sig. Judgment on Verdict. (See text, page 17.) Supreme Court — County of Fulton. (Title of the cause.) The above-entitled cause having been brought to trial before his honor, M. L. S., Justice of the Supreme Court, and a jury, to try and determine the right of possession of the following described lands: (Description); and having found a verdict in favor of the plaintiff; and that he was FoEMS OR Precedents in Ejectment. 49 entitled to the possession of the property above described, and as set forth in the complaint; and said verdict having been duly received and filed, it is now Ordered and adjudged. That the plaintiff have and re- cover of the defendant the possession of the property above described (or if the jury, having found that he is entitled to possession of said premises for life or for a term of years, state for whose life, or for what number of years he is entitled to said property). Second. And, the jury having assessed the damages to which plaintiff is entitled to recover, by reason of the withholding of the same by the defendant, and that he is damaged in the sum of dollars (| ), it is further Adjudged, That the said plaintiff may recover from the said defendant the sum of dollars, as his dam- ages for the withholding of the same (or if the jury should find that the defendant is entitled to the sum of dollars for permanent improvements placed upon said property in question by him, which said improvements does not exceed the amount of damages found by the jury then (here state the amount so found by the jury). Third. It is further adjudged. That said plaintiff have and recover of said defendant the sum of dollars ($ ), as his costs and disbursements of this action ; and that execution do issue in favor of said plaintiff and against said defendant, for the restoring of said property, and for said damages and the costs and disbursements of this action. County Clerk, Fulton County. 50 Keal Actions. Judgment for Damages, Only Where PlaintifE's Title Expires Before Trial. (See text, page 17.) Supreme Ooukt — County of Fulton. JOHN DOE, Plaintiff, against RICHARD ROB, Defendant. The above-entitled action having been duly commenced on the day of , 189 , by the service of a summons and complaint herein, personally upon the de- fendant, and the issue therein having been duly joined on the day of , 189 , by a service of an answer therein; and said action having been duly brought to trial on the day of , 189 , before his honor, Justice Kellogg, and a jury; and it appearing upon said trial that the title of the plaintiff in said premises had expired on the day of , 189 , which title had expired prior to the trial of this action, and the jury therein having found a verdict in favor of the plaintiff and against the defendant, for damages for the with- holding of said premises up to said time, it is now Adjudged, That the plaintiff, , recover of the defendant, , the sum of dollars damages for the withholding of the premises described in the complaint prior to the day of , 189 , when plaintiff's title expired; also for dollars costs of this action, amounting in all to the sum of dollars (| ) ; and as to the possession of said prem- ises, it is further Adjudged, That the defendant is entitled to the posses- sion of said property from said date when plaintiff's title expired, as against the plaintiff. C. H. BUTLEE, County Clerk. Forms or Precedents in Ejectment, 51 , Affidavit on an Application for a New Trial. (See text, page 20.) Supreme Court — County of Fulton. (Title of the cause.) State of New Yoek, , )EK, ) County of Fulton, , of , being duly sworn, says that on the day of , 189 , and within three years, a final judgment was rendered by the Court in the above-entitled action in favor of the plaintiff and against the defendant (or defendants), for the recov- ery of the possession of certain real property situate in the county of , bounded and described as fol- lows, to wit: (Description), with dollars (I ) damages and costs. That the judgment-roll upon said judgment was filed in the clerk's office of Fulton county, on said day of , and that said judgment was rendered upon (either a trial report of referee or by the court, or by default; if, since the judgment was rendered, the defend- ant has died, state who has succeeded to his interest in said property) ; that the amount of costs and damages awarded by said judgment to said plaintiff therein for rents and profits, and for use and occupation, is the sum of dollars (| ), with interest thereon from the day of , and that said action was not brought for rent in arrears; and that deponent is ready and willing to pay all costs and damages other than for rents and profits or for use and occupation awarded against him, as the condition of obtaining a new trial in the above- entitled action. (Jurat.) 52 Eeax, Actions. Notice of Motion for a New Trial. (See text, page 20.) Supreme Court — County of FuiiTON. (Title of the cause.) To Sir, — Take notice that upon the affidavit hereto an- nexed and upon all papers and proceedings in the above- entitled action, a motion will be made at a term of the Supreme Court on the day of , 189 , for an order vacating the final judgment rendered in the above-entitled action, and granting a new trial therein upon payment of the costs and damages awarded by said judgment to the plaintiff, other than for rents and profits, or for use and occupation, and for such other and further relief as may be proper. Plaintiff's Attorney, Order Granting New Trial. (See text, pages 19 and 20.) At a Special (or Trial) term of the Supi*eme Court held at the Court House in the city of Johns- town, Fulton county, N. Y. (or at the chambers). Present — Hon. M. L. S., Justice. (Title of the cause.) On reading and filing the affidavit of , dated , 18 , with proof of due service thereof, and of notice of this motion upon the plaintiff's attorney, and on reading (whatever papers there may be opposing the same). Now, on motion of , of counsel for the de- Forms or Precedents in Ejectment. 53 f endant, after hearing , of counsel for the plaint- iff, it is hereby Ordered, That the judgment rendered in the above- entitled action by the Court, on the day of ,18 , on which day the judgment roll thereon was filed in the Fulton county clerk's office, be and the same is hereby vacated, and that a new trial in said action be and the same is hereby granted upon payment by the defendant to the plaintiff of | , being the amount of costs and damages other than for rents and profits, or for use and occupation awarded thereby to the plaintiff (or that it be referred to , to ascertain the costs and damages other than for rents and profits or for use and occupation). M. L. S., J. S. 0. Enter in Fulton. Hi Real Actions. CHAPTER II. PARTITION. Place of trial. The action of partition must be brought in either the Supreme Court or in the County Court, and the place of trial must be had in the county where the property is situate. Code, §§ 217, 340 and 982. Por what property. The action may be maintained for any real property held in common by two or more persons as tenants in com- mon or as joint tenants. Code, § 1532; Jooss v. Fey et al., 129 N. Y. 17; Weston V. Stoddard et al., 137 N. Y. 119. No separate action for several tracts without consent. Where several tracts are owned in common no separate action can be maintained for a part only, without the written consent of all, and if brought without such con- sent then the plaintiff's share is chargeable with the whole cost. Supreme Court rule 65. Parties to the Action. PlaintifEs. Any one or more persons who are joint tenants or ten- ants in common who have an estate in inheritance, for life or for years, may maintain the action, and if no parti- tion can be had then for a sale. Code, § 1532; Tllton v. Vail, 25 N. Y. St. Rep. 212. Vested remainder or reversion. Any one or more who are joint tenants or tenants in common who have a vested remainder or reversion, may maintain an action for partition, but no sale can be had PAilTlTION. 55 thereof except by consent by deed of the persons holding the estate. Code, § 1533; Scheu v. Lehning, 31 Hun, 183; Prior v. Hall, 41 Hun, 613; Prior v. Hall, 49 Hun, 502. When complaint dismissed. And if such partition or sale would work great preju- dice to the owners the complaint must be dismissed. But a dismissal is not a bar to the right to bring a new action when the prior estate has terminated. Code, § 1533; Van Brunt v. Van Brunt, 14 N. Y. St. Kep. 887. Action on void devise. Any person claiming to be a joint tenant or tenant in common by reason of being an heir of a person holding and in possession of any real property, may bring an action in partition after the death of such person, not- withstanding such property has been devised to another, but he must allege and establish that such devise is void. Code, § 1537; Bell v. Gittere, 14 N. Y. St. Rep. 61; EUer- son V. Westcott, 148 N. Y. 149. Who can. m.aintain the action. The action can only be maintained by a joint tenant or tenant in common. Code, § 1538; Nellls v. Nellis, 99 N. Y. 505. Action by an incompetent. The action can be brought by an infant idiot or a lun- atic upon authority of the surrogate. Code, §§ 1534 and 1590. And without such authority the action is irregular. Struppman v. MuUer, 52 How. Pr. 211. A trustee for the benefit of an infant, with absolute power to sell and having possession, may bring the action in his own name. Gallie v. Eagle, 65 Barb. 583. A cestui que trust cannot. Morse v. Morse, 85 N. Y. 53. An assignee for the benefit of creditors may. Rutherford v. Hewey, 59 How. Pr. 231; Van Arsdale v. Drake, 2 Barb. 599. 56 Eeal Actions. A receiver in supplementary proceedings cannot. Payne v. Becker, 87 N. Y. 153. One interested only in the proceeds of the real estate cannot. Davis V. Davis, 15 Week. Dig. 118. Action in regard to State lands. The Attorney-General of the State shall, at the request of the Board of Fishery, Game and Forestry, bring an action in the name of the people for actual partition. Whenever the State owns an undivided interest in lands of the forest preserves or holds and is in possession of such lands as joint tenants or tenants in common with any person. And any such person upon obtaining the written consent of the board, may maintain any such action. And service upon the Attorney-General shall be deemed service upon the State. The proceedings shall be the same in all other respects as other like actions, except no costs shall be allowed against the State, and no sale of such lands. Laws 1895, ch. 395, § 273. And the Board of Fishery, Game and Forest may, with- out action but with the consent of the Comptroller, agree with any person or persons owning lands within the forest preserves jointly or as tenants in common with the State, for partition of such lands, and on such agreement and consent of the Comptroller shall make on behalf of the State any conveyance necessary and proper on such parti- tion, and such conveyance shall be forthwith recorded as now provided by law as to conveyance made by the Com- missioners of the Land OflBice. Laws 1895, ch. 395, § 273. Action by married women. A married woman may maintain the action without joining her husband, and even against him. Code, § 450; Moore v. Moore, 47 N. Y. 467. Tenants, by the courtesy of an undivided interest, may maintain the r.ction. Tilton V. Vail, 42 Huu, 638. Partition. 57 Defendants. Every person having an undivided share in possession or otherwise as a tenant in fee, for life, by courtesy or for years; every person entitled to the reversion, remainder or inheritance of an undivided share, after the determina- tion of a particular estate therein; every person who, by any contingency, contained in a devise or grant, or other- wise, is, or may become entitled to a beneficial interest in the undivided share thereof; every person having an inchoate right of dower in an undivided share; every per- son having a right of dower in the property or any part thereof which has not been admeasured, must be made parties defendant. Code, § 1538; Tilton v. Vail, 25 N. Y. St. Rep. 212. Title by descent. Whenever an action shall be brought by a party who derived title from an estate of a deceased, within three years after letters have been issued, the executors or administrator must be made defendants; if none have been appointed that fact must be alleged in the complaint. Code, § 1538. Necessary parties defendant. In order to clear the title from all claim, it is necessary to make a tenant by the courtesy for life or for years, or any person entitled to a contingent or vested remainder, or reversion, or a creditor, or other person who has a lien or interest which attaches to the property, or a credi- tor who has a lien on the property, or any share, should be made defendants. Code, §§ 1539 and 1540; Mapes v. Brown, 14 Abb. N. C. 94. Devisees who take a, contingent fee limited upon a prior devise are necessary defendants, although the owners of the prior estate are living. Nellis V. Nellls, 99 N. Y. 505. One who is entitled to a remainder in fee devised in trust should be made a defendant. Moore V. Appleby, 36 Hun, 368. 58 Real Actions. tTpon death of either party. If, upon the death of either plaintiff or defendant, and his interest passes to one not a party, he may be made a defendant by order of the court, and supplemental sum- mons issued to bring him in. Code, § 1588. Notice of the pendency of the action. The plaintiff should, at the time of filing his complaint, and may at any time before final judgment, file a notice of the pendency of the action. What it must state. Said notice must state all the names of the parties, the nature and object of the action, and a descinption of the property to be partitioned. Code, § 1670. Where filed. Said notice should be filed in each county where the property lies in regard to which the action is commenced. Code, § 1670. If filed before service of summons. If said notice is filed before service of summons then personal service thereof must be made or publication must be commenced or service made out of the State within sixty days after the same is filed. Code, § 1670. The complaint. The complaint must describe the property with com- mon certainty, and must specify the rights, shares and interest therein of all the parties as far as can be ascer- tained. And if a party, a share, a right or interest, is unknown to the plaintiff, or if ownership of the inheri- tance depends upon an executory devise, or if a share or interest is uncertain or contingent, or if the remainder is a contingent remainder so that the party cannot be named, those facts must all be stated in the complaint. Code, § 1542; Townsend v. Bogert et al., 126 N. Y. 370. Necessary requirements. As the proceedings are statutory and in rem, the juris- diction of the court is therefore confined to the subject Partition. 59 matter as set forth in the complaint, and it is, therefore, necessary to be very careful to follow the exact require- ments of the statute. All facts as to possession must be alleged sufficiently to apprise the court of the exact situation of the parties. One action for lands in common. All lands held in common by the same persons must be partitioned in one action. Henderson v. Henderson, 9 N. Y. St. Rep. 356. Where infants are parties. Where infants are parties the complaint should state if the parties own any other lauds in common. General rule 65; Prltchard v. Druth, 32 Hun, 417. The estate of each must be stated. But where several own collectively, shares, the extent of which are unknown, that fact may be stated. Hyatt V. Pugsley, 23 Barb. 285. And if the interest of each is not stated a purchaser cannot be compelled to complete his purchase. Noble V. Cromwell, 26 Barb. 475. Where plaintiff seeks to recover rents and profits, such facts as entitle him thereto must be pleaded. BuUwinker v. Kyker, 12 Abb. Pr. 311. One desiring to recover advances made by him on account of the property, such facts must be alleged and judgment asked therefor. Bogardus v. Parker, 7 How. Pr. 305. The right to maintain the action should be fully stated. Walnman v. Hampton, 110 N. Y. 429. If the property is of such a character that actual parti- tion cannot be had, and a sale is desired, the facts must be alleged and judgment demanded accordingly. Joinder of actions. Two or more causes of action as specified in section 484 of Code of Civil Procedure, may be united. Code, § 1687; Townsend v. Bogert, 126 N. Y. 370. 60 Real Actions. When plaintiff knows that a person claims an interest but does not know the nature or extent of the claim, he may so state, and call in the claimant and compel him to disclose his interest. Townsend v. Bogert, 126 N. Y. 370. Answer. The title or interest of the plaintiff as stated in the complaint; the title or interest of any defendant as stated in the complaint; and the title or interest of any defend- ant as stated in his answer, may be controverted by the answer of any defendant. But the defendant testing the title or interest of a co-defendant must state it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney of such defendant or upon the defendant personally if he has not appeared by attorney. Code, §§ 521 and 1543. Issue tried. And all issues so joined must be tried in the action. Code, § 1543. The title and rights of all parties may be determined. Shannon v. Pickell, 2 N. Y. St. K. 160. What must be pleaded. The rules of pleading apply to the answer in partition, and any statutory defense, if relied on, must be pleaded. Barnard v. Onderdonk, 11 Abb. N. 0. 349. What determined. The question of tenancy, joint or common, the entire question of title as between the plaintiff and defendants and the defendants themselves, can all be raised in the answer. But the question of title as between the plaintiffs them- selves cannot be determined, because the plaintiff cannot join with him as plaintiff a person having a conflicting claim. Struppman v. Muller, 52 How. Pr. 211. Partition. 61 Void devise. An heir may contest the title of one holding under a devise if he alleges the devise to be void. Code, § 1537. But a judgment under section 2653a, Laws 1897, is a bar to the plea that the devise is void. Code, § 2653a. Creditor's claim. The claim of a creditor may be tried and his rights determined. Code, § 1540. What adjudicated. And all questions as to dower, courtesy, liens, life or other estate may be adjudicated in this action. Code, § 1539. Under the Code all titles and interests can be now tried and determined. Code, § 1543. What cannot be determined. Where some of the parties are tenants in common of lands in different counties, but are not tenants in common with certain other parties, the questions cannot be deter- mined in one action, as the rights of parties cannot be determined in an action in which they have no interest in common with some of the other parties. Mayor v. Mayor, 11 Abb. N. G. 367. If some of the lands are situate in another State but the parties agree to make partition in this State, they will not be allowed to question the jurisdiction of the court. Bowen v. Durant, 6 N. Y. St. R. 535. Bents and profits adjusted. The court may adjust the rights of one or more of the parties by reason of any receipt of more than his or their proper share or proportion of the rents or profits of a share or part of a share. Code, § 1589. 62 Eeal Actions. Accounting. A party who alleges facts sufficient to entitle him to an accounting of the rents and profits, may recover them, especially where the land is held adversely to him. McCabe v. McCabe, 18 Hun, 153. Receiver. In a proper case the court may appoint a receiver, and under the order of the court may lease the property and collect the rents and profits pendente lite. Weeks v. Weeks, 106 N. Y. 626. Improvements. A tenant in possession who desires to recover for neces- sary improvements, must demand the same in his pleading. Wainman v. Hampton, 110 N. Y. 429. Reply. The plaintiff should reply to any affirmative matter set up in the answer of one or more of the defendants, and each defendant, whose title is attacked by any other defendant, should answer same. Issues. The issues are formed and tried like any other action. Code, §§ 963 to 981. Trial by jury. The issues of fact are triable by a jury, and unless the court directs the issues to be stated as prescribed by sec- tion 970 of the Code, they may be tried upon the pleadings. Code, § 1544; Van Schuyver v. Mulford, 59 N. Y. 426; Weston V. Stoddard, 137 N. Y. 119; Hulse v. Hulse, 17 Civ. Pro. 92; O'Grady v. O'Grady, 55 Hun, 40; Stewart v. Blatchley, 8 Misc. 472; Bell v. Gittere, 30 N. Y. St. B. 221. Reference. And where there is no dispute as to the respective rights and interests of the parties, the court may order a reference instead of a jury trial. Brown v. Brown, 23 N. Y. St. K. 768. Pabtition. 63 Default. When a defendant has defaulted or the party is an infant, the court must ascertain the interests of the sev- eral parties. Code, § 1545. This may be done by reference or by proof before the court. Id. And must be done before an interlocutory judgment is rendered. Id.; Watson v. Brigham, 3 How. Pr. 290; Mingay v. Lackey, 142 N. Y. 449. Application to take proof. And where default is made and any of the defendants are infants or absentees or unknown, the plaintiff, on affidavit and notice to such as have appeared, may apply at a Special Term for an order of reference to take proof of the matters set forth in the complaint and the rights of the parties. General rule 66. Such referee shall be selected by the court. Id. What must be sho-wn. Upon such reference the referee must ascertain the rights, shares and interests of all parties; also, if any of the defendants are infants, absentees or unknown; and also of the matters set forth in the complaint; also an abstract of the title by which the same are held; and where the plaintiff has stated that the lands are so sit- uated that partition of them cannot be had without great prejudice, said referee should ascertain and report that fact, and the proof should be certain as to all the facts. Hamilton v. Morris, 7 Paige, 39; Larkin v. Mann, 2 Paige, 27. Duties of referee. The duties of the referee should be stated in the order and the matters to be found by him. General rule 66. 64 Reax, Actions. Beference to ascertain liens. Also before an interlocutory judgment for the sale of the premises can be made the court, with or without appli- cation, must ascertain by a reference whether there is any creditor not a party who has any lien on the undivided share or interest of any party. Code, § 1561; Hall v. Partridge, 10 How. Pr. 188. But said reference may be dispensed with in the dis- cretion of the court if the court is satisfied by a search certified to by the clerk or register of the county where the property is situate that there are no outstanding liens. Id.; Leinen v. Elter, 43 Hun, 252; Eq. Life Assn. Co. of the U. S. V. Olyphant, 32 N. Y. St. R. 705. Ifotice to lienors. If a reference is directed said referee must cause a notice to be published once a week for six successiveweeks in a newspaper designated by the court in the county where the venue is laid, and also in any other county where the property is situated, directing each party who has such lien to appear before said referee at a specified time and place to prove his lien and the amount due or to become due thereon. And the referee must make his report thereof with all convenient speed. Code, § 1562; Halsted v. Halsted, 55 N. Y. 442; Connor V. Connor, 20 Civ. Pro. 308; O'Grady v. O'Grady, 56 Hun, 40; Doremus v. Doremus, 49 N. Y. St. Hep. 800. All lienors are bound by the confirmation of the referee's report if due and regular notice has been given. Dunham v. Minard, 4 Paige, 441. Report of referee, what to contain. If the referee should report that actual partition can- not be made, he should state all the facts which are the basis of his conclusions, so that the court may be informed, and should be very particular and explicit in his report as to the title, as the purchaser is entitled to an indefeasible title before he can be compelled to complete his purchase, and the report should state or the search Paktition. 65 annexed should show every fact necessary to make the title perfect. Tucker v. Tucker, 19 Wend. 226. Interlocutory judgment. After a trial of the issues as raised by the pleadings, or of the trial by reference or default, an interlocutory judgment will be made in which must be determined the rights, shares or interest of each party as far as has been ascertained, and each must determine the rights of the parties therein. Code, § 1546. Judgment to sell. And where it is found or it appears to the court upon application for judgment in favor of the plaintiff, that the property or any part thereof, cannot be partitioned, such judgment (except as otherwise expressly prescribed, that is where issues are entitled to be tried by a jury), must direct that such property or part thereof be sold at public auction. Id. Judgment to partition. Otherwise, it must be direct that partition be made between the parties according to their respective rights, shares and interest. Id.; Furman v. Furman, 12 Hun, 441; Brooks v. Davey, 109 N. Y. 495; Spliess v. Meyer, 20 Civ. Pro. 157; Hyatt V. Pugsley, 23 Barb. 285. Judgment as to part. Where the rights, shares and interest of a party has been determined, and the rights, shares and interest of the other parties as between themselves has not been determined, such judgment must direct partition as between such party whose share has been determined and the other parties. Code, § 1547. And if the rights of two or more have been determined 5 66 RBAii Actions. it may also direct partition among them of a part of the property proportionate to their aggregate shares. Id. And the court may, from time to time, as the other interests are ascertained, render judgment in like man- ner of the remainder of the property. Id.; Walker v. Walker, 3 Abb. N. C. 12. Thus we see great care should be taken in the prepara- tion of the interlocutory judgment, as it declares the rights, titles and interests of each party, and determines their rights to the property. Taggart v. Hurlburt, 66 Barb. 553. The interlocutory judgment determines the question whether the property shall be actually partitioned or sold. Partial partition. Where the rights of one or more of the parties have been ascertained, but no determination as to the others, the court may direct the action to be served, and judg- ment be rendered as to the rights of those determined, and leave the action to proceed as to the others. Code, § 1547. Substituted parties plaintiff. And if the plaintiff's interests have been determined the court may direct that one of the other parties be sub- stituted as parties plaintiff. Code, § 1547. This will be done upon proper showing on motion. Shares in common. Two or more persons making it appear to the court that they desire to enjoy their shares in common, may have judgment for partition, so as to set-off their shares to them without partition as between them. Code, § 1548; Scott v. Guernsey, 48 N. Y. 106; Haywood V. Judson, 4 Barb. 228. Judgment modified. The court may from time to time modify the interlocu- tory judgment or render a supplemental judgment. Code, § 1560. Paktition. 67 Notice of motion and appeal. The moving party should enter the interlocutory judg- ment and serve a copy upon the adverse party (with the usual notice of entry). And any person who deems him- self aggrieved may appeal to the Appellate Division, but not to the Court of Appeals. Beebe v. Griffing, 6 N. Y. 465. Commissioners. Where the interlocutory judgment directs partition such judgment must designate three disinterested free- holders as commissioners to make such partition. Code, § 1549. Report. Their report is regarded as the verdict of a jury and will not be set aside without good cause. Powers and duties. Their powers and duties, their manner of making actual partition and report, is set forth in sections of the Code. Code, §§ 1550, 1551, 1552, 1553, 1554. Order on report. The court may set aside or confirm the report, and may, if necessary, appoint new commissioners who proceed as before. Code, § 1556. Final judgment. Upon confirmation of the report the court must make a final judgment which is binding and conclusive upon the plaintiff, and each defendant who was served per- sonally or by publication, and the legal representatives of each party. Code, § 1557; Reed v. Keed, 107 N. Y. 545. Upon whom binding. Also each party claiming from, through or under such party by title accruing after the filing of the judgment roll or of the lis pendens. Id.; Home Ins. Co. v. Dunham et al., 33 Hun, 415; Jordan v. Van Bpps, 85 N. Y. 427. 68 Eeal Actions. Tlie same. Also, each person not in being when the interlocutory judgment is rendered who, by the happening of any con- tingency, becomes entitled to a beneficial interest attach- ing to an estate or an interest in a portion of the property to which the person first entitled was plaintiff or defend- ant duly served. Id.; Bernard v. Onderdonk, 98 N. Y. 158. Section 445 not apply. And section 445 of the Code does not apply to this final judgment so as to permit a defendant served by publica- tion to come in and defend. M. Must direct. The final judgment must also direct that each party to whom a part is allotted be let into possession. Code, § 1558. Costs. Also costs must be directed to be paid plaintiff. Code, § 1559. The Commissioners. Have nothing to do with the sale of the property. Code, § 1560. What lands partitioned. They can only make the partition ordered by the inter- locutory judgment; if they include other lands their pro- ceedings are void, and a final judgment based thereon is void. Corwhite v. Griffing, 21 Barb. 9; Vail v. Vail, 17 Civ. Pro. 38; Ford v. Knapp, 102 N. Y. 135. Notice to partition. It is not necessary, but the better practice is to give all parties interested in the proceedings notice of the time and place where they will meet to partition. Doubleday v. Newton, 9 How. Pr. 71. Duties of commissioners. Their duties are ministerial, and their actions are lim- ited to the directions contained in the interlocutory judg- ment, but still they must use their best judgment and Paetition. 69 make as fair and equitable division as possible, dividing the property so as to preserve its use, and when the division cannot be equitable require a money payment from one to the other so as to equalize the shares, and the court will not interfere unless it is shown that they have abused or exercised their powers unjustly. Vail V. Vail, 23 N. Y. St. Kep. 574; Post v. Post, 65 Barb. 192. When the interlocutory judgment directs that a certain portion be set apart for several who desire to hold in com- mon, they may do so and partition the balance. Code, § 1548; Scott v. Guernsey, 48 N. Y. 106. All to meet, majority to act. All the commissioners must meet together but a majority may act and set forth the fact that they all meet, sign the report and give the reasons why it is not signed by all. Code, § 1554; Schuyler v. Mareli, 37 Barb. 350; Underbill V. Jackson, 1 Barb. Cb. 73. Notice of report filed. After the report is filed either party may serve notice upon the others that said report is filed, and a notice of motion for confirmation, and if the others file no objec- tions within eight days the report will be confirmed; if objections are filed they will be heard in the usual way. General rule 30. Upon confirmation. The report of the commissioners if confirmed, becomes a part of the record title of the property; it should be carefully and accurately made, and give an accurate description of each parcel set off; it should give the nature of the estate if in fee or less than a fee. It should state the items of the expenses of the commissioners and the amount paid for surveys. It should be proved like a deed and filed in the county clerk's office of each conty where the property is situate. Code, §§ 1544 and 1555. 70 Real Actions. Proceedings to sell. Where it appears to the court by the report of the referee appointed to ascertain if the property can be par- titioned, or on the application of plaintiff for judgment, or on the report of the commissioners that the property cannot be partitioned, then the court will order a sale thereof by a referee or by the sheriff at public auction to the highest bidder. Whether a sale will be ordered or not depends upon thfe facts in each case, and a sale is only resorted to when the court is convinced that actual partition cannot be made, therefore, it is necessary that all steps toward a sale be taken with great care, and that all the facts neces- sitating a sale fully appear. Facts must be stated. The commissioners when they report a sale must state all the facts and reasons ; conclusions will not answer. Tucker v. Tucker, 19 Wend. 226. When infant's interest cannot be sold. A sale of the interest of an infant or incompetent per- son cannot be had when said interest is by deed or will directed that it should not be sold. Code, § 2357. Such sale is void. Forman v. Marsh, 11 N. Y. 544. Where sale not ordered. Where the effect would be to interfere with the rights or powers of an executor of a will a sale will not be ordered. Henderson v. Henderson, 113 N. Y. 1. Judgment to sell. When the interlocutory judgment directs a sale the court must direct the terms of credit to be given, if any; also direct the terms of credit which may be allowed for any portion of the purchase money which it thinks proper to be invested, and for any portion of the purchase money which is required to be invested for the benefit of infants, Pastition. 71 unknown owners, parties out of the State, tenants for life, or years, or by courtesy, or in dower. Code, §§ 1573, 1581, 1582, 1583. As to liens. If it appears that there are any existing liens upon the share or interest of any party, the interlocutory judgment must direct the person making the sale to pay into court the portion of the money arising from the sale of such share or interest after deducting the costs and expenses for which it is liable. Code, § 1563. Terms of credit. The interlocutory judgment for sale must direct the terms of credit which may be allowed for any portion of the purchase money, and direct the investment of that which is necessary. Code, § 1573. Beport. The person making the sale must immediately file with the clerk his report under oath, containing a description of each parcel sold, the name of the purchaser and the price for which it was sold. Code, § 1576. Confirmation. If the sale is confirmed final judgment must be entered accordingly, directing the officer making the sale to exe- cute the proper conveyances. Code, § 1577. As to costs and expenses. Code, § 1579. Sale. The person making the sale must give notice of the time and place as follows : First. By posting in three public places where the sale is to take place written or printed notices, and also in the town or city where the property is situated. Said notices must be posted at least forty-two days before the sale. 72 Real Actions. Second. By causing a copy of the notice to be pub- lished in a newspaper in the county where the property is situated, if there is a newspaper published there, and if there is none, then in the official paper at Albany. Said notice must be published for six full weeks (forty-two days) before the day of sale. Code, § 1434. Published in tlie city. If the property is situated in a city in which a daily paper is published, then such notice may be published twice a week for three successive weeks (twenty-one days) before the sale. But in the city of Greater New York it must be published in two daily papers for such time. Code, § 1678. The notice need not state the terms of the sale or the manner. Hoffman v. Burke, 21 Hun, 580. The notice must describe the property with common certainty. Code, § 1435. Objections filed. If proper notice has not been given as required by the statute, a party aggrieved thereby may file objection set- ting forth his grounds to the report, and move to set the same aside. Fostpouements . All postponements of the sale must be published in the same paper or pa,pers of the first notice. Code, § 1678. Sale in person. After the officer has posted his notice and postpone- ments thereof, he must make the sale at the time and place designated in person, and his duties are ministerial, and he must follow strictly the order under which he acts ; he cannot vary the terms in any material particular. People V. Bergen, 53 N. Y. 404. He is liable for contempt. Id. Pabtition. 73 Application to the court. If he thinks it would be more advantageous to act dif- ferently he must apply to the court, and he is at liberty to ask the court for instructions if he is in doubt. Easton v. Pickersgill, 55 N. Y. 310. Premises sold subject to a mortgage. If the premises are ordered sold subject to a mortgage, the referee cannot ascertain the amount thereof and pay it; he must sell it subject thereto. Baehe v. Dosclier, 67 N. Y. 429. Referee cannot delegate his power. He cannot delegate his powers to another or allow or suffer anyone to sell or receive or dispose of the money. Van Tassel v. Van Tassel, 31 Barb. 439. Adjournment. He has power to adjourn the sale from time to time. King V. Piatt, 37 N. Y. 155. How sold. The sale must be at public auction to the highest bid- der. The terms must be made known, and if sold subject to any claim; and if the property consists of two or more distinct parcels, they shall be sold separately, unless otherwise ordered, but if two or more buildings are sit- uated on the same city lot they shall be sold together. Code, § 1678. How and where sold in cities. Such sales in the cities of New York or Brooklyn shall be held between 12 m. and 3 o'clock p. m., unless otherwise specially directed, and such sale in the city of New York shall take place at the Exchange sales rooms at 111 Broadway, but the Appellate Division of the Supreme Court, First Department, may change such place and may designate the auctioneers or persons who shall make the said sales. Such sales in the city of Buffalo shall take place at the Eeal Estate Exchange rooms, between 9 and 11 A. M., and 2 and 3 p. m., unless the court ordering the sale shall otherwise direct; such sales are subject to such 74 Eeal Actions. regulations as the Justices of the Eighth District shall establish. General rule 62. Sold in parcels. If the judgment directs the property to be sold in par- cels and the referee sells in gross, the sale is irregular and voidable, and can be set aside if moved against in time, but if no motion is made the sale will be considered acquiesced in. Cunningham v. Cassidy, 17 N. Y. 276. Statute of frauds. The officer selling acts as an oificer of the court, and no memorandum of sale is needed to be signed by both parties to avoid the statute of frauds. Andrews v. O'Mahoney, 112 N. Y. 567. Contract of sale. But it is better to have a contract of sale drawn up and signed by both the officer and purchaser, although the statute only requires the referee's report to contain a description of each parcel sold, the name of the purchaser and the price for which it was sold. Code, § 1576. When stayed. The sale cannot be stayed by a judge out of court except upon at least a two days' notice to the plaintiff's attorney. General rule 67. Postponements must be published. If the officer fails to publish the notice of postpone- ment, the sale is irregular, but if no objection is made it is not void. Bechstein v. Schultz, 45 Hun, 191. By what sheriff. If the sale is to be by the sheriff it must be by the sheriff in office at the time the notice is published, even if his term of office has expired. Code, § 184, subd. 4; Union Dime Savings Institute v. Andariese, 19 Hun, 310. Partition. Who cannot purchase. A commissioner or officer making the sale or a guardian of an infant to the action, cannot purchase nor any person for their benefit, except that a guardian may, if author- ized, purchase for the benefit of his ward. Code, § 1679. A trustee cannot purchase if it in any way affects his trust, except for the benefit of his cestui que trust. Fulton V. Whitney, 66 N. Y. 548. Papers filed nunc pro tunc. If the plaintiff fails to file any necessary papers the court may allow them filed nunc pro tunc. Oroghan et al. v. Livingston et al., 17 N. Y. 218; Noble v. Cromwell, 26 Barb. 475. When a purchaser need not complete his purchase. Stephens v. Humphreys, 73 Hun, 199; id., 141 N. Y. 586. Taxes. The person selling must pay the taxes and assessments unless otherwise directed. Code, § 1676 As to when a resale will be ordered. Lefevre v. Laraway, 22 Barb. 167. Beport of sale. Immediately after completing the sale the officers mak- ing it must file with the clerk his report. Code, § 1576. The report must be specific and show that the officer has carried out and followed the requirements of the statute and the directions of the court, and where the interlocutory judgment has required him to pay certain of the proceeds into court (Code, § 1563), or to the husband after the release by the wife of her inchoate right by dower (Code, § 1571), or to deposit them for the benefit of unknown defendants (Code, § 1572), or to invest any por- tion of the purchase money (Code, § 1573), or to take securities for portions thereof (Code, § 1575), his report should show all such directions have been followed. Code, §§ 1563, 1571, 1572, 1573, 1575. 76 Ebal Actions. Exceptions to the report. Anyone aggrieved by the report may file exceptions thereto within eight days after he receives notice that the same is filed. General rule 30. Kesale. It is entirely within the discretion of the court to con- firm or set aside the sale and order a resale, even if there is no fraud and the sale is in all respects regular. Hale V. Clausen, 60 N. Y. 339. The above states the rule in full, and leaves the court with the fullest and broadest power; all purchasers buy subject to the jurisdiction of the court, and his title is not complete till entry of final judgment. Cazet V. Hubbell, 36 N. Y. 677. Who can apply. The application to set aside the sale may be made by any person who is interested in the proceeds of the sale or whose rights are affected by the sale. Gould V. Mortimer, 26 How. Pr. 167; Goodell v. Harring- ton, 76 N. X. 547. And the remedy is by motion. McCotter v. Jay, 30 N. Y. 80. Fraud in the sale. Where there is an actual fraud in the sale a party injured thereby has a legal right to have the sale set aside, and a refusal to set aside the same by the court may be reviewed in the Court of Appeals. Fisher v. Hersey, 78 N. Y. 387. Purchaser's rights. The purchaser at a judicial sale submits himself to the jurisdiction of the court, and is therefore bound by its reasonable orders. But where he is not a party to the suit his rights will be protected by the court in anything except his own acts or neglect. Causes to relieve purchasers. The causes which are sufficient to relieve purchasers from completing his purchase depend upon the circum- Paktition. 77 stances of each case. It is sufficient to state for the pur- pose of this work that he is entitled to a good title free from reasonable doubt, and marketable. Where fraud has entered into the sale, if he can show that he has been injured the court will relieve him from his purchase. Fisher v. Hersey, 17 Hun, 370. Purchaser's title. •His title is good as against all the parties to the action or any one claiming under or through a party by title accruing since the filing of the lis pendens. Brooks V. Ackerly, 16 N. Y. St. E. 656. Fossession. He is not bound to complete his purchase unless he can be put into possession. Kapp V. Kapp, 15 N. Y. St. R. 967. Costs. The costs are regulated by the same rules as in other actions, except as follows: The prevailing party is entitled to costs, of course, only when title has been put in issue, and each of the several defendants are only liable for his proportionate share of such costs. The fees and expenses of the commissioners, including surveys, must be taxed under direction of the court, and paid by plaintiff and put into his costs. Code, § 1555. Tees. The commissioners and surveyors are each entitled to five dollars per day, and each of the surveyors' assistants two dollars per day. Code, § 3299. And the final judgment must also state that each defendant pay to the plaintiff his proportion of the plaint- iff's costs, including the extra allowance, and each sum must be fixed by the court. Code, § 1559. 78 Eeai, Actions. Extra allowance. Tlie court may, where a defense has been interposed, award an extra allowance not exceeding five per cent upon the sum recovered or value of the subject matter. Code, § 3253. All costs and expenses must be deducted from the pro- ceeds of the sale, and each parties' costs paid to his attorney. Code, § 1579. Distribution. The proceeds, after deducting costs and charges, are awarded to the parties in proportion to their rights and interest. And all liens must be paid out of the property upon which it is a charge. . Code, § 1580. Jurisdiction of the fund. The court has jurisdiction of the fund, and adjudges how distribution shall be made upon the coming in of the referee's report. Halstead v. Halstead, 55 N. Y. 442. Title to fund; how decided. Disputes as to the title of the funds must be settled by action and not by an order of the court. Matter of Castle, 2 N. Y. St. R. 362. Rents and profits. As to rents and profits received by any of the parties the court may adjust. Code, § 1589. The court, by the final judgment, directs the application of the proceeds. Code, § 1577. Dower in the property. Where there is a dower in the entire property directed to be sold, the court must consider and determine at the time of the interlocutory judgment for sale is made, whether said right should be excepted or sold. Code, § 1567. Partition. 79 Sale directed, including dower, etc. If a sale of the property, including the right of dower or any other interest therein, is directed, the purchaser takes the property free, and the court must direct that sufficient of the moneys be invested to equal such right, unless the written consent of the party entitled thereto duly executed be filed at or before the report of sale con- senting to release the same or to accept a gross sum in lieu thereof. Code, §§ 1568, 1569, 1570, 1571. Inchoate right of dower. The judgment should provide for ascertaining the value of an inchoate right of dower. Jordon v. Van Epps, 85 N. Y. 427. Final judgment. Upon the report of the commissioners appointed to make actual partition, or upon the report of the referee appointed to sell, the court must make an order confirm- ing or refusing to confirm the same. Code, §§ 1557 and 1577. Upon the court confirming the same, final judgment must be entered that said partition or sale shall be firm and effectual forever. Code, §§ 1557 and 1577. Also, in case of sale directing the person making the sale to execute the proper conveyances. Code, § 1577. On a question of the rents and profits in case of default the relief can only be that demanded in the complaint. Bullwinker v. Kyker, 12 Abb. Pr. 311. All rights of the parties should be determined. The final judgment should settle all the rights of the parties and not leave a portion of the property to be sub- ject to any other proceeding in partition. Post V. Post, 65 Barb. 192. Upon whom the final judgment is binding. Said final judgment, either for sale or partition, is bind- ing upon the following parties: 80 Ebal Actions. First. The plaintiff and each of the defendants upon whom service was made, and their legal representatives. And section 445 of the Code, as to defending after final judgment, does not apply. Second. Bach person claiming from, through or under the plaintiff or defendants, as above, who have acquired a title after the filing of the judgment roll or of a notice of the pendency of the action. Third. Every person not in being when the interlocu- tory judgment was made who have acquired any benefi- cial interest or estate through such plaintiff ordefendants. Code, § 1557; Mead v. Mitchell, 17 N. Y. 210; Weston v. Stoddard, 137 N. Y. 126; Chism v. Keith, 1 Hun, 589; Prior V. Prior, 15 Civ. Pro. 436. It is also a bar to all parties who are not parties who have a lien but who had notice to make proof of their claim before the referee. Code, § 1578. On whom the final judgment is not binding. But it is not binding upon a party whose rights or interest are expressly reserved and left unaffected, and upon parties who have not been made parties to the action or any party claiming through or under them. Code, § 1557. But if the plaintiff elected to make them parties then the judgment must direct and award them their rights, and it would then be binding. Mead v. Jenkins, 27 Hun, 570. To whom it is a bar. It is also a bar against each person not a party who has, at the time it is rendered, a general lien by judgment or decree on the undivided share or interest of a party, if notice was given to appear before the referee and make proof of his claim or lien as prescribed in section 1562, and also against each person made a party who has such lien. Code, § 1678. Pabtition. 81 But if such persons haTing such lien had the same on record at the time of the commencement of the action or of the filing of the notice of pendency who is not made a party, the judgment does not affect them. Code, § 1678. Infant's bound. Infants who have properly appeared by guardian are equally bound. Prior V. Prior, 49 Hun, 502. Actual partition or sale bars the future contingent interests of persons not in being. Mead v. Mitcliell, 17 N. Y. 210. The future rights of a remainderman under a will are not barred. Monarque v. Monarque, 80 N. Y. 320. Security to refund. Also the judgment may direct that any party who receives his portion of the proceeds give security to refund. Code, §§ 1584, 1585, 1586. Becording copies of judgment roll. An exemplified copy of the judgment roll or of the final judgment should be recorded in each and every county where the property or any part lies. Code, §§ 1595 and 1677. Possession. The judgment must direct that a party be let into pos- session, and if any person bound by the judgment with- holds the same he is guilty of contempt, and the court can order the sheriff to put the party into possession. Code, § 1675. The power of the court only extends to the persons who have been parties to the action, and other parties who claim to hold rightfully have the right to have their claims adjudicated. Meiggs V. Willis, 8 Civ. Pro. K. 125; Bryton v. Jacl^sou, 10 Paige, 307. 6 82 EEAii Actions. Appeals. An interlocutory judgment can be appealed only to the Appellate Division, not to the Court of Appeals. Tompkins v. Hyatt, 19 N. Y. 534. But an appeal from a final judgment may be taken to the Court of Appeals. Code, § 190. Appeal from an interlocutory judgment. And when final judgment has been rendered after the decision of the Appellate Division upon an appeal from the interlocutory judgment, an appeal may be taken directly to the Court of Appeals from such final judgment, and such appeal brings up for review the decision of the Appellate Court upon the interlocutory judgment Code, § 1336. The decision of the court being largely one of discre- tion, it will not be disturbed unless error is clear. Scott V. Guernsey, 48 N. Y. 106. Appeal dismissed. The appeal will be dismissed where one accepts his por- tion after he has appealed. Alexander v. Alexander, 104 N. Y. 643. The practice on appeal is the same as in other cases. Forms or Precedents in Partition. 83 PRECEDENTS. Afladavit for Order of Publication. (See text, page 63.) Supreme Court — County of Fulton. (Title of the cause.) State of New Yoek, ) Countfy of Fulton, \ , being duly sworn, says that the above-entitled action is brought for the partition of real property situate in the county of Fulton and State of New York, of which real property the plaintiff and defendants are owners in common, and owners of an undivided por- tion of said premises; that , defendants, are not residents of the State of New York, and reside at No. street, in the city of Chicago, 111.; and the defendants, , reside at Seattle, State of Wash- ington, and that they cannot be found within the State of New York, to the knowledge and belief of deponent; that the summons and complaint in the above-entitled action were filed in the office of the clerk of the county of Fulton on the day of , 189 ; and that a copy of the same is hereto annexed and made a part of this affidavit; that the statements contained in the veri- fied complaint are true to the knowledge of this deponent; and that this deponent's source and knowledge of the non-residents of the defendants named herein, and of their residence at the places named above, are as follows ; that deponent has received letters from said persons, and that each of the said defendants stated that they were now residing at the places stated above (or state any mat- ter purporting to the same). 84 Keai. Actions. Deponent further says that he will not be able to make personal service of the summons and complaint on the defendants herein, within the State of New York, for the reasons that said defendants reside without the State, as above set forth; that the said defendants have property herein, to wit, an undivided interest in the prop- erty described in the complaint herein. Sworn to before me this day of , 189 E. J. O'C, Notary Public, Fulton County. Order for Publication. (See text, page 63.) Supreme Coukt — Fulton County. (Title of the cause.) It appearing to me upon the verified complaint in this action, showing that the cause of the action for a judg- ment is therein demanded against the defendants namely (here name the defendants); and upon the aflldavit of , the plaintiff, verified on the day of , 189 ; and it appearing to me satisfactorily that the defendants are non-residents of the State of New York, and that personal service cannot be made therein; now, on motion of Clarence W. Smith, attorney for the plaintiff in the above-entitled action, it is Ordered, That the service of the summons and com- plaint in the above-entitled action be served upon the defendants by publication, viz., by the publication thereof in two newspapers, to wit, the Johnstown Daily Kepub- lican, published at Johnstown, N. Y., and the Johnstown Forms or Precedents in Partition, 85 Daily Democrat, published at the same place; said publi- cation to be made once a week for six successive weeks, or at the option of the plaintiff, by the service of the sum- mons and a copy of the complaint and a copy of this order, and notice of the object of action herein, upon said de- fendants personally without the State; and it is further Ordered and directed. That before the first publication the plaintiff deposit in the post-office in the city of Johns- town, N. Y., in a securely post-paid wrapper, copies of the summons and complaint herein annexed, and of this order, directed to the several defendants at their respec- tive places of residence, to wit (insert the residence of the said defendants). Dated day of ,189 . M. L. S., J. S. C. Enter in Fulton. (Note. — The summons must have the usual notice for publication, which is as follows: To , defendants, the foregoing summons is served upon you by publication pursuant to an order of the Hon. M. L. S., Justice of the Supreme Court of the State of New York, dated the day of , 189 , and filed with the application in the office of the county of Fulton. The object of this action is to make partition ac- cording to the respective rights of the parties, and if it is made by proof that partition cannot be made, without great prejudice to the owners therein, then for a sale as described in the complaint. Dated this day of , 189 . Sig.) Plaintiff's Attorney. 86 Eeal Actions. Lis Pendens. (See text, page 58.) Supreme Coubt — County of Fulton. (Title of the cause.) Notice is hereby given that an action has been com- menced in this court upon the complaint of the above- named plaintiff against the above-named defendants, for the purpose of obtaining partition and division of the premises described in said complaint, among the different owners thereof, and persons entitled thereto; and in case partition cannot be had, then a sale thereof under the directions and order of this court, and for the division of the proceeds of such sale, among said parties as are en- titled thereto, according to their respective rights in said premises; and which said premises were, at the time of filing this notice, situate in the county of Fulton and State of New York, bounded and described as follows, to wit: (Description.) Dated at , this day of , 189 . C. W. S., Attorney for Plaintiff. Office and post-office address. To Charles H. Butler, County Clerk, Fulton County: Sir. — You are hereby directed to index the foregoing notices to the names of , defendants in the above-entitled action. C. W. S., Plaintiff's Attorney, Forms or Precedents in Partition. 87 Complaint Setting Out Void Devise. (See text, pages 55, 61.) Supreme Court — County of Fulton. (Title of the cause.) The plaintiff complains of the above-named defendants, and alleges as follows: First. That on or about the day of , 189 , one , being the owner in fee simple of certain real property situated in the county of Fulton and State of New York, bounded and described as follows, to wit: (Description), died, leaving as his only heirs and next of kin the following named parties. (Here name the parties plaintiff and defendant.) Second. That the said did, prior to his death, make and execute his last will and testament, in and by which was devised and bequeathed his entire real property, and also personal property, which said real property is the same as hereinbefore described; to the defendants, the above-named , and (here name the defendants), which said will is as follows, to wit: (Here set forth the will verbatim.) Third. That on the day of , 189 , the said last will and testament was duly presented to the surrogate of the county of Fulton and State of New York; and due notices issued to all of the parties interested therein, stating that the said will would be offered to the said surrogate for probate. Fourth. Plaintiff further alleges that said paper so purporting to be the last will and testament of , deceased, is not in fact the last will and testament of the said , deceased; that the same was never sub- scribed and executed by him; and is not his own free act or deed, and conveys no right, title or interest in and to the said property herein described; and that the pre- 88 Real Actions. tended signature thereto is not liis act or deed, and was never acknowledged nor in no wise attested by him, and that said pretended will and paper is void and of no effect. Fifth. Plaintiff further alleges that the defendant (here state the exact rights, shares, interests of each of the parties to this action). Sixth. Plaintiff further alleges that is the wife of , defendant (here set out in full the in- choate right of dower of each of the rights of said defend- ants, and also the tenants by courtesy of each of the hus- bands of the defendants). Seventh. Plaintiff further alleges, upon information and belief, that the personal property of the said , deceased, at the time of his death, will not and is not suffi- cient to pay and discharge his debts in full ; and the said debts remain unpaid, and will be a charge and lien herein upon the property described. Wherefore, plaintiff demands judgment: First. That the property devised to the said , contained in the paper purporting to be the last will and testament of , deceased, be declared null and void, and the instrument be adjudged not to be the last will and testament of the said , deceased. Second. That a partition and division be made of said premises according to the respective rights of said parties, or if partition cannot be had without material injury to these parties, then for a sale of said premises, and a division of the proceeds between the parties, according to their respective rights. Third. That this court ascertain and determine the amount of the debts of said , deceased, which are a charge and will become a lien upon said real prop- erty; and that said debts be paid by the referee out of the Forms ob Precedents in Partition. 8^ proceeds of said sale of said real property, next after the payment of the costs and expenses of this action. CLAEENOE W. SMITH, Attorney for , Guardian ad litem of , an infant. Office and post-office address, Johnstown, N. Y. (Verification.) Complaint in Partition Setting up Title. (See test, pages 57, 58.) Supreme Court — County of Fulton. AMOS D. SHELDON, PlaintlfE, against ALDERBERT E. BLEEKMAN, ALICE W. BLEEKMAN, His Wife; HERBERT E. BLEEKMAN and MARY M. BLEEKMAN, His Wife, et al., Defendants. The complaint of the above-named plaintiff respectfully shows, upon information and belief: First. That Eber Jacobs, of the town of , in the county of Fulton and State of New York, was, in his lifetime, seized in fee simple of the following described premises, to wit: (Description); also, that other tract, piece or parcel of land situate in the town, county and State aforesaid, bounded and described as follows, to wit: (Description.) Second. That the said Eber Jacobs, being so seized of the above-described property did, on the day of , 189 , die intestate, leaving the above-named plaintiff and the above-named defendants his only sur- viving heirs-at-law. 90 llEAL Actions. Third. That by the death of the said Eber Jacobs, the plaintiff and defendants herein became seized of and en- titled to the possession of the said described property, as tenants in common, by descent from the said Eber Jacobs, of the following rights, shares and interest therein, to wit: That the plaintiff Amos D. Sheldon, is the son of Irene Sheldon, deceased, who was a sister of the' said Eber Jacobs, deceased, and is entitled to one undivided part thereof; that the defendants Alderbert E. Bleekman and Herbert E. Bleekman were children of Amanda Bleekman, deceased, a sister of the said Eber Jacobs, de- ceased, and as such are entitled to one undivided part thereof. (So continue as to the rights, shares and interest of the defendants.) Fourth. That the defendant Alice W. Bleekman, is the wife of the defendant Alderbert E. Bleekman (so con- tinue with the wife of all the defendants), and each have an inchoate right of dower of the respective shares of their respective husbands, the defendants aforesaid. Fifth. That the share, right and interest of the said John Bleekman is unknown to the plaintiff, and cannot be ascertained after due diligence and search. Sixth. That the parties hereto own no other lands in the State of New York in common. Wherefore, the plaintiff prays that a partition may be made among the parties hereto according to the respective rights and interest therein; that commissioners may be appointed by the court for the purpose of making such partition, and in case the partition of such premises, or any part thereof, cannot be made without great prejudice to the owners thereof, then, that the said premises, 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 expenses of this suit, may be divided among the owners thereof, according to E'OEMS OR Precedents in JPartition. 91 their respective rights and interest therein; and that the plaintiff may have such other and further relief as may be just and proper. H. D., Attorney for Plaintiff, (Verification.) Johnstown, N. Y. Complaint by Assignee in Partition. (See text, page 55.) Supreme Court — Fulton County. BYRON D. BROV^N, as Assignee of BALTIE H. DIXON and GEORGE E. WILKINS, for the Benefit of Creditors, against WALTER W. DIXON et al. The plaintiff complains of the defendants, and alleges: First. That on the day of , 189 , he vras duly made assignee by an instrument in writing, which was duly executed and filed in the office of the clerk of the county of Fulton, of all the goods, chattels, property and interests of George E. Wilkins and Baltie H. Dixon ; and that as such assignee he duly qualified as such, and filed a schedule, and did in all things, as required by law, fully comply with the statutes, giving him the right, title and interest in and to all property, both real and per- sonal, that belonged to the said Dixon and Wilkins' assignors. Second. That as such assignee, he, together with the other defendants herein, became seized and possessed as tenants in common of the foUovring described property, to wit: (Description); and as such tenants in common they are entitled to the following rights, shares and in- terests of said described property, that is to say, that the 92 Eeai; Actions. said plaintiff, as such assignee, is entitled to one undivided part thereof, and as such defendant Walter W. Dixon is entitled to one undivided part thereof (and as to the interest of each of the defendants, here state). Third. That is the wite of Baltie H. Dixon, and is the wife of George E. Wilkins; and that is the wife of Walter W. Dixon; and that each of them have an inchoate right of dower of the respective shares of their respective husbands; that the parties hereto own no other lands in common in this State. Wherefore, the plaintiff prays that a partition may be made among the parties hereto according to the respec- tive rights and interest therein, that commissioners may be appointed by the court for the purpose of making such partition; and in case the partition of such premises, or any part thereof, cannot be made without great prejudice to the owners thereof, then, that the said premises 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 expenses of this suit, may be divided among the owners thereof according to their respective rights and interest therein; and that the plaintiff may have such other and further relief as may be just and proper. H. D., Plaintiff's Attorney, Johnstown, N. Y. Affidavit for Leave for Infant to Bring Suit. (See text, page 55.) State of New York, I . Gownty of Fulton, \ Henry Wright and William Jones, both of the city of Johnstown, N. Y., being severally duly sworn, say and FoKMS OR Precedents in Pabtition. 93 each for himself says that William Jones is an infant, of the age of seventeen years, and that Henry Wright is the general guardian of the person and estate of the said William Jones; that the said William Jones is the owner as tenant in common with Samuel Jones et al. of all the following described lands, to wit: (Description); that as deponents are informed a suit is necessary to be instituted by said infant for the partition of said property, and the grounds of deponents' information and belief are as fol- lows: That said property is worth about |10,000, and that the taxes and expenses thereof amount to $400 annually, and that the gross income thereof does not exceed $100, and that it is a constant expense to said infant, and he derives no income or benefit therefrom. Deponents further say that the said Samuel Jones and other tenants in common with said infant, are unwilling to divide said land or make amicable division thereof, although deponent, Henry Wright, as guardian, has re- quested them so to do, and deponents are satisfied that no friendly division can be made by this infant or in his be- half. Deponents further say that no other or previous application has been made by this infant, or in his behalf, and that no action or proceedings touching said real es- tate are now pending. HENRY WEIGHT. WILLIAM JONES. (Jurat.) Application for a Leave to Bring Partition by an Infant. (See text, page 55.) State of New Yoek, ) } ss. : Oounty of Fulton, i , of , being duly sworn, says that he is (describe the affiant); that , who is an infant of the age of years, is the owner and 94 Real Actions. joint tenant (or as tenant in common) ; that is equally entitled to certain real estate situate in the county of Fulton, described as follows, to wit: (Description.) That, in the opinion of the deponent, a suit should be authorized to be brought by said infant for the partition of said property, or the sale thereof, if partition cannot be had, and that the following are deponent's reasons for such opinion: (Here state facts that are for the infant's interest or benefit in said action.) (Jurat.) Order on the Same. (See text, page 55.) At a term of the Surrogate's Court held at the Sur- rogate's office in the city of Johnstown, in and for the county of Fulton, on the day of , 189 . Present — Hon. J. K., Surrogate. (Title of the cause.) I, J. K., Surrogate of Fulton county, being satisfied by the affidavit of , dated , 189 , that , who is an infant of the age of years, is the owner of the equal undivided of the real estate described in said affidavit, situate in the county of Fulton, as joint tenant (or tenant in common); that and that the interest of said infant will be promoted by his bringing an action for a partition of said property. I do hereby authorize said to bring said action. Dated , 189 . J. K., Surrogate. Forms or Precedents in Partition. 95 Guardian's Bond, on Iieave to Bring an Action in Place of Infant. Know all men by these presents that we, , and , both of the city of Johnstown, county of Fulton and State of New York, are held and firmly bound unto the people of the State of New York in the penal sum of dollars (| ), for which payment well and truly to be made, we bind ourselves, our heirs, executors, administrators or assigns, jointly and severally, and firmly by these presents. Sealed and delivered this day of , 189 . Whereas, by an order made by the Supreme Court of the State of New York, at a Special Term thereof, held at the Court House in the city of Johnstown, N. Y., on the day of ,189 , (or whereas the surrogate of the county of Fulton has given the authority and right to bring the action herein), the said was duly appointed guardian ad litem of the said , an infant defendant under the age of years; and that the action in partition is brought by the said as plaintiff against and , as defend- ants, whereby the said order appointing the said guardian required him to enter into a bond with sufficient sureties ; now, therefore, the condition of this bond is such that if the said , as such guardian, shall faithfully discharge the trust committed to him, and render a just and true account of his proceedings, and doings thereof, then this obligation shall be void, otherwise to remain in full force and virtue. Seal. Seal. Seal. (Acknowledgment and justification.) 96 Ebax, Actions. Affidavit for Order of Beference. (See text, page 63.) Supreme Court — ■ County of Fulton. (Title of the cause.) State of New Yoek, ) County of Fulton, i Clarence W. Smith, being duly sworn, says that he is an attorney-at-law residing at Johnstown, Ful- ton county, N. Y., and is the attorney for the plaint- iffs in the above-entitled action; and that said action was commenced by the service of a summons and complaint, the object of which is to obtain a par- tition of certain real property described in said com- plaint; and that if partition cannot be had, then for a sale, and a division of the proceeds among the owners thereof according to their respective rights, shares and interest; that said summons and complaint were duly and person- ally served upon all of the defendants herein (without the State by publication pursuant to the order granted therein by the Hon. M. L. S., Justice of the Supreme Court), within the State, and that more than twenty days has elapsed since said service; and that a copy of said summons and complaint and order of publication were duly served upon and , the defend- ants; and that twenty days has elapsed since the date of the last publication; that said , defendant, has appeared by his respective attorney, , but that the time to answer has expired, and that no answer or demurrer has been interposed by any of the said defend- ants; and that , defendant, is an infant, and has been duly appointed his guardian ad litem by an order duly granted by this court; that the notices of the lis pendens in the above-entitled action was duly filed in the office of the clerk of the county of Fulton on Forms or Precedents in Partition. 97 the day of , 189 , and duly indexed to the names of the said defendants more than twenty days since. CLARENCE W. SMITH, Attorney for Plaintiff. Sworn to before me this day of , 189 .' EMMA J. O'CONNOR, Notary Public, Fulton County. Notice for Keference. (See text, page 63.) Supreme Court — County of Fulton. (Title of the cause.) Sir. — You will please take notice that upon the sum- mons and complaint and due proof of service thereof on the defendants herein, and upon the verified affidavit of Clarence W-. Smith, duly verified on the day of , 189 , a copy of which is herewith served upon you; and upon the papers and proceedings had in the above-entitled action, I will move this court, at a Special Term thereof to be held at the chambers of the Hon. M. L. S., Justice of the Supreme Court, in the city of Amster- dam, N. Y., on the day of , 189 , for an order appointing a referee to inquire into and take proof of the rights, shares and interest of the parties to this action, in and to said property sought to be partitioned; and report with all due speed whether in his judgment the said property or any part thereof is so circumstanced; that a partition thereof cannot be made without great 7 98 Real Actions. prejudice to the parties therein, and for such other and further relief as to the court seems just and proper. Yours, etc., CLARENCE W. SMITH, ' Attorney for Plaintiff. Office and post-office address, To , Defendant's Attorney. Order for Reference. (See text, pages 63, 64.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. Leslie W. Russell, Justice. SuPEEME Court — County of Fulton. (Title of the cause.) On reading and filing the proof of the personal service of the summons and complaint in this action upon the defendants , and upon filing the proof of ser- vice of the summons and complaint and order upon the following named defendants , and by publication pursuant to an order made by the Hon. M. L. S., Justice of the Supreme Court; and it further appearing that the notice of the pendency of this action was duly filed in the office of the clerk of the county of Fulton, and upon reading and filing the affidavit of Clar- ence W. Smith, attorney for the plaintiff, verified on the day of , 189 , wherein it appears to the court that none of the said defendants have appeared, except the defendants , who were infants, who duly appeared by their guardian , and inter- Forms ok Precedents in Partition. 99 posed the usual general answer on behalf of the said infants, not denying any material allegations in said com- plaint, and upon reading and filing proof of service and due notice of this motion upon , attorney for said guardian, and after hearing C. W. S., of counsel for the plaintiff, it is ordered that , a counselor-at- law, of the city of Johnstown, Fulton county, N. Y., be and he hereby is appointed referee in the above-entitled action, to ascertain and report the rights, shares and interest of the several parties to this action, in and to the property described in the complaint; and also to ascertain if any of the defendants are infants, absentees or unknown; and also to ascertain the titles by which each share, right and interest is held; and to take proof of the plaintiff's title and interest; and to report whether the land so situated could be partitioned, and if it cannot be done without great prejudice to the parties therein; and if he come to the conclusion that partition cannot be made, whether it should be sold; and then, in that case, said referee is further ordered and directed to report whether or not any part thereof is necessary to be sold; and he is further ordered and directed to ascertain whether any creditors who are not parties to this action, have a lien upon said premises, or any share, right or interest of the parties herein, and to report to this court such liens, and the names of the parties and amounts of such liens, the date thereof, and the amount due and to become due. Enter in Fulton county. L. W. R, J. S. 0. (Note. — The order to report as to liens may be dis- pensed with if a search is furnished satisfactory to the court.) See text, page 64. 100 Eeaij Actions. Report of Eeferee as to the Bights, etc. (See text, pages 64, 65.) Supreme Cotjbt — County of Fulton. (Title of the cause.) To the Supreme Court of the State of New York: In pursuance of the order of this court, made in the above-entitled action, on the day of , 189 , by which it was referred to the undersigned referee, to hear and determine the facts made by the pleadings therein, and to take proof of the rights, shares and interest of the respective parties in the said premises, with an abstract of the conveyance by which the rights, shares and interest are held; also to inquire and report if said premises in whole or in part are so situated that an actual partition thereof can be made without great prejudice to the owners; and that if the partition cannot be made then so report; and that if a sale of the whole or a part thereof is necessary, to so report and specify the same, together with the reasons which render said sale necessary; and also to ascertain and report whether any creditors who were not parties to the action, have a specific lien upon said property, or any interest, share or right of any of the parties in said premises, which would necessarily be sold; and also to ascertain and report if any of the defendants are infants, absentees or unknown. Therefore, I, the undersigned referee in said order named, do respectfully report as follows : That I have been attended by the sev- eral attorneys who have appeared in this action, and after having taken the oath and qualified as said referee, I pro- ceeded to take proof of the several matters submitted to me; and that I caused the papers, titles and search to be certified by the clerk of the county of Fulton and State of New York, in and by which it appears that there is no general or specific lien or incumbrance on the whole of said premises, or upon any undivided share thereof; and Forms or PreoeCbntS in Partition. / 101 I further report that I have taken proof, aririr-thart- there is no general specific lien or incumbrance held by any party on the whole of said premises or upon any share, right or interest therein; and I do further report, that the material facts and allegations in the complaint of the plaintiff are true; and that the rights, shares and interest in the premises described in said complaint are held by (set forth the names of the parties to the action, and by what title they hold; and also the amount of their interest in the premises so described). I do further report that , defendant, is the widow of , deceased, and has a right of dower in the whole of said premises, as said widow; and I do further report that , wife of the defendant , has an inchoate right of dower in said premises, or in said undivided share of said premises; and I do further report that said defendant , as the widow of , deceased, who has the right of dower to the whole of said premises, is of the age of years; and that said dower interest should be sold for the reasons that, to except said dowei- interest in a sale would seriously impair the salable value of the whole of said property; and I find that she is will- ing to accept out of the proceeds a gross sum in lieu of said dower interest; and I do further report that the prem- ises described in said complaint are so circumstanced that the actual partition thereof cannot be made without great prejudice to the owners thereof, for the reason that there are a large number of parties in interest, and that a parti- tion would be difficult; and I do further report that the property so situated is valuable farming lands, with farm buildings thereon, and it cannot be divided without greatly impairing its value; and furthermore, there can be no equal proportionate partition therein; therefore, I am of the opinion that a sale of the whole premises would be to the best interest of the parties herein; and I do further report that there are no other parties infants, 102 Keal Actions. absentees or unknown, other than as are herein set forth, and made parties to this action; all of which is respect- fully submitted. HABWOOD DUDLEY, Keferee. (Note. — In a referee's report for actual partition, con- tinue in the same language as the preceding report, except that in my opinion the premises described in the said com- plaint are so circumstanced that a sale thereof cannot be made without great prejudice to the owners thereof; and that a partition of said premises would be the most advan- tageous to said owners, for the reasons that the said prop- erty consists of business blocks, village lots, etc., which could not be divided without greatly prejudicing the parties thereto, and that the property could not, in my judgment, be sold on a fair and equal basis, but can be partitioned. Interlocutory Judgment to Partition. (See text, pages 65, 66.) At a Special Term of the Supreme Court of the State of New York, held in the chambers of the Hon. M. L. S., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — County op Fulton. (Title of the cause.) On reading and filing the report of , Esq., the referee appointed in the above-entitled action by an order of this court made and entered on the day of , 189 ; and on reading and filing proof of due ser- vice of this motion upon , Esq., attorney for the defendants, and also upon , Esq., attorney for Forms or Precedents in Pabti^ion. lOS , defendant, as guardian ad litem of , infants, and upon the pleadings and papers in this action; now, on motion of 0. W. S., attorney for the plaintiff, it is Ordered, adjudged and decreed that the respective rights, shares and interests of the parties to this suit, and of the property mentioned and described in the complaint herein are as follows, to wit: That is the widow of , deceased, and is entitled to her right of dower in and to all of the following described property: (Description); that , plaintiff, is seized of and entitled to in fee simple to one undivided part thereof, subject to said dower right of the defendant ; that the defendant is entitled to in fee simple absolute to one undivided part sub- ject to said dower right (and so describe the interest of each defendant); that the defendants , and , who are infants herein, are entitled to an undivided share thereof, subject to said dower right; and that the defendant is the wife of the defendant , and entitled to her inchoate right of dower in said one undivided part of said described premises; and the said referee having found that the said property is so situated that a partition thereof can be made without great prejudice to the owners thereof, it is further Ordered, That the and and are hereby appointed as reputable and disinterested free- holders of the county of Fulton and State of New York, as commissioners, to make a partition of said property as hereinbefore described; and so distribute and partition the said property among the different parties herein as their rights, shares and interests; and it is hereby directed that said commissioners are directed before entering upon the execution of their duty, to subscribe and take the oath of office, and file the same with the clerk of the county l04 Heal Acl'ibNS. of Fulton for the faithful performance of their duties; and to proceed and make partition as directed in this order unless it should appear to a majority of them that a partition could not be made without great prejudice to the owners, in which case they shall make and render a report of that fact to this court; and they shall distribute said property into distinct parcels, alloting it to the sev- eral parties thereof, quality and quantity being consid- ered according to their respective rights, shares and inter- ests of the parties, as is fixed by this judgment; and shall designate said partitions by permanent monuments; and they are also hereby directed and authorized to employ surveyors and all necessary assistance in aiding them in so doing and partitioning thereof. Enter in Fulton county. M. L. S., J. S. C. Oath of Commissioners. StJPREME Court — Fulton County. (Title of the cause.) State of New York, , ' ^ ss. )EK, ) County of Fulton, We, , and and , com- missioners duly appointed by an interlocutory judgment made and entered herein on the day of , 189 , to make partition of the property in said judgment, each for himself swears that he will faithfully, honestly and impartially discharge the trusts imposed in him. Sig. Sig. Sig. Forms or Precedents in Partition. 105 Sworn to before me this day of , 189 . EMMA J. O'CONNOR, Notary Public, Fulton County. (Note. — This oath must be filed with the county clerk before the commissioners can enter upon or execute their duties.) Report of Commissioners Making Partition. (See text, pages 67, 69.) Supreme Court — Fulton County. (Title of the cause.) To the Supreme Court: In pursuance of an interlocutory judgment made in the above-entitled action, and entered in the office of the clerk of the county of Fulton, on the day of , 189 , we, the undersigned commissioners hereby appointed and designated to make partition of the premises described in said judgment, among the parties entitled thereto, accord- ing to their respective rights, shares and interests, do report as follows: That before we entered upon the duties of our said office we subscribed and took the oath of office as is authorized by law, and filed the same with the clerk of the county of Fulton on the day of , 189 ; we have also carefully examined the premises described in said judgment, and caused them to be surveyed, and made partition thereof between the parties to said action, according to their respective shares, rights and interests therein, as the same has been ascertained and determined by this court, in and by said judgment in the manner fol- lowing: That we have set ofE and allotted to the defend- ant , the widow of , deceased, as her 106 Real Actions. dower right in said premises, described as follows, to wit: (Description.) Second. We divided the whole of said premises, after having set aside said dower right as above designated, into allotments and lots of land, which are designated on a map hereto annexed by figures "one," " two " and " three," etc. ; which lots are in our opinion equal in quantity and value ; and that being in our judg- ment the most beneficial division that could be made of said premises. We have also set off in severalty to the plaintiifs herein all that certain piece, lot or parcel of land as designated on said map by the figure " one," which is respectively bounded and described as follows, to wit: (Description. Herein set forth the courses, distances, posts, stones and other permanent monuments.) We have also set off in severalty to the said defendant , all that other certain piece, parcel or lot of land desig- nated on said map by the figure " two," which is respec- tively bounded and described as follows : (Description. So proceed with each of the allotments to each of the defendants, and give a description of the part so allotted.) We have also allotted each of the parties to this action a separate and distinct parcel of land, and which they were entitled upon determining of the dower interest by the death of said , the widow of , deceased, as it will appear upon said map, and designated by the letters A, B and C, which said parcel was allotted to each plaintiff and to the defendants as their respective shares in said property. (If there are unknown defendants then report as to what share is set off to them, as such defend- ants, and a description of the premises so set off. If it should appear that partition cannot be made equally between the parties according to their respective rights, shares and interest without great prejudice to the owners thereof, then state that compensation is to be made between the parties as follows: That the plaintiff is to pay Forms or Precedents in Partition. 107 to the defendant , the sum of dollars, etc.) We do further state and report that the items of the various expenses attending the said commissioners in said partition, including our fees as commissioners, together with the items of charges for the services of surveyors, are as follows: 2 day's services for each of said commissioners, at |5 per day |30 00 1 day's service for 1 surveyor 5 00 2 assistants, at |2 each 4 00 Making a total of |39 00 And we have also caused a map to be made of the land as herein partitioned, showing what parts of the said premises have been allotted to the respective parties, which map forms a part of this our report, and is hereto annexed and marked " Exhibit A," In witness whereof, said commissioners have hereunto set their hands to this their report this day of ,189 . Sig. Sig. Sig. (Acknowledgment.) Notice to Apply for Confirmation of Commissioners' Beport and Pinal Judgment. (See text, page 69.) Supreme Court — County of Fulton. (Title of the cause.) Sir. — Take notice that I will apply at the Special Term of the Supreme Court of the State of New York, to be held in the city of Amsterdam, N. Y., on the day of , 189 , for an order confirming the commissioners' 108 Real Actions. report, a copy of which report you are herewith served; and for final judgment partitioning the lands herein as therein set forth and reported. CLARENCE W. SMITH, Plaintiff's Attorney. Office and post-office address. Cor. Main and William Sts., Johnstown, N. Y. To , Attorney for Defendant, and , Attorney for Guardian ad litem, Johnstown, N. Y. Final Judgment of Actual Partition. (See text, pages 70, 71.) At a Special Term of the Supreme Court of the State of New York, held in the city of Amster- dam, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Coubt — County of Fulton. (Title of the cause.) This action having been brought on to be heard upon the report of and and , the commissioners duly appointed in and by virtue of the interlocutory judgment made and entered in this action on the day of , 189 , and upon reading and filing said report which bears date the day of , 189 , and proof of due service of the notices of applica- tion for judgment upon the attorneys for the several parties herein, who have appeared herein, and upon the attorney for the guardian ad litem of the infants, , defendants; and it appearing by said report that said commissioners have made partition of the said premises described in the complaint in this action between the parties herein, according to their respective Forms ok Precedents in Partition. 109 rights, shares and interests, as the same has been ascer- tained and determined by this court; and the said com- missioners having divided the whole of said premises herein ; and that a portion therein is set off to , defendant, the widow of , deceased, as her dower right therein, and the balance divided into allotments of equal value and quantity; and after having set off in severalty to the plaintiff one of said allotments herein described as follows: (Description); and it also appearing by said report that by said partition the commissioners have set off to the defendant another part of said premises, which is herein described as fol- lows: (Description); and it further appearing by said report that the said commissioners have set off to the defendant as her dower right in said prem- ises the portion described as follows, to wit: (Description.) (Also give each allotment to each defendant, and give description of each.) Now, on motion of , of counsel for the plaintiff, and after hearing , attorney for the defendant, it is Ordered and adjudged. That the said report be and is in all things confirmed, and that the said allotments as so made by said report do, and they hereby are ordered to stand; and that the partition so made may be firm and effectual forever; and it further appearing to the court by said report that partition cannot be made equally between all the parties according to their respective rights without great prejudice to the rights and interests of some of them that the following payments are neces- sary to produce such equality, and it is therefore further Ordered and adjudged. That a compensation be made, and it is hereby distributed between the parties as fol- lows : That the defendant, , pay to the plaint- iff, , the sum of dollars; that the defendant, , pay to the defendant, , the sum of dollars; and it is further 110 Keai, Actions. Ordered and adjudged, That each of the parties who are entitled to the present possession of all of that tract, piece or parcel of land so allotted and assigned to them respec- tively, be let into the possession thereof immediately; that the parties who are entitled to the possession of that dis- tinct parcel of said premises, allotted as the dower inter- est therein of the defendant, , be let into pos- session of said property, after determining the said estate of , the widow of , deceased; and it is further Ordered and adjudged, that the said pay to the plaintiff the costs and charges of this proceeding, amounting in all to the sum of dollars, and that the said plaintiff have execution therefor. Enter in Fulton County. M. L. S., J. S. C. Affidavit for Kefereuce, to Ascertain Liens. (See text, page 71.) SuPKEME Court — Fulton County. (Title of the cause.) Clarence W. Smith, being duly sworn, says that he is the attorney for the plaintiff herein, and that there are creditors who have liens against the rights, shares and interests of the defendants herein, in said property; which said creditors are not made parties to this action, and the amount and nature of their liens is unknown to this deponent; and that no certified search has been made herein. Wherefore, deponent asks that a referee be appointed to ascertain the names of said creditors, and the nature and amount of said lien. (Jurat.) Forms or Precedents in Partition. Ill Notice of Application for the Appointment of Keferee. (See text, page 64.) Supreme Court — County of Fulton. (Title of the cause.) Sir. — Take notice that I will move this court at a Special Term thereof, to be held in the city of Amster- dam, N. Y., on the day of , 189 , for an order appointing a referee to ascertain the names of the creditors, and the amounts and nature of said liens against the property in this action. Yours, etc., CLAKBNCE W. SMITH, Attorney for Plaintiff. Office and post-office address, Johnstown, N. Y. To Frank L. Anderson, Esq., Defendant's Attorney, 142 West Main street, Johnstown, N. Y. Order Appointing Beferee to Ascertain Liens. (See text, page 64.) At a Special Term of the Supreme Court of the State of New York, held at the chambers of Hon. M. L. S., in the city of Amsterdam, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — Fulton County. (Title of the cause.) This cause having been begun in this court for the par- tition of certain real property as described in said com- plaint herein; and it appearing to the court that a parti- tion thereof cannot be made without great prejudice to 112 Eeai. Actions. the parties interested therein; and that a sale of the said property would be most beneficial to the parties herein; and it further appearing to the court that no search certi- fied by the clerk of the county of Fulton as to any liens, or as to any creditors, has been made against said prop- erty herein; and it further appearing that due notices of this application for an order appointing a referee to ascer- tain whether there are any creditors not parties to this action who have liens on said property, or on any undi- vided share, right or interest thereof, has been duly served upon the parties herein. Now, on motion of C. W. S., attorney for the plaintiff, and no one appearing in oppo- sition, it is Ordered, That , Esq., an attorney and coun- selor-at-law of the city of Johnstown, N. Y., be and he hereby is appointed referee in the above-entitled action to ascertain and report to this court whether there is any creditor not a party to this action, and if there is any liens upon any undivided share, right or interest of any party, and the name of said creditor, together with the nature and amount of said lien, and the amount due or to become due thereon. Enter in Fulton county. M. L. S., J. S. C. Ifotice to Creditors to Present Claims. (See text, page 64.) Supreme Court — County of Fulton. (Title of the cause.) The undersigned referee duly appointed in the above- entitled action by an order of this court made and entered on the day of , 189 , and duly entered in the clerk's ofiflce of the county of , on the day Forms or Precedents in Partition. 113 of , 189 , do hereby require each and every person and persons not a party to this action, and who have liens upon any undivided share or interest of the property hereinafter described, to appear before me, the under- signed referee, on the day of , 189 , at my office No. street, in the city of Johns- town, N. Y., and prove said claim, with the true amount due or to become due thereon, with the date thereof, and the nature of the said claim respectively, which is a lien upon said premises, or any share or interest in the fol- lowing described premises, to wit: (Description.) Dated at , this day of , 189 . Eeferee. (Note. — This notice must be published once each week for six successive weeks, in a newspaper published in the county wherein the place of trial is designated; and also in a newspaper published in each county wherein the property is situated.) Referee's Report. (See text, page 64.) Supreme Court — Fulton County. (Title of the cause.) To the Supreme Court: In pursuance of an order made and entered in the above-entitled action in the Fulton county clerk's office, on the day of , 189 , I, the undersigned referee, do hereby report that before entering upon my duties as such referee herein, I took the authorized oath of office as said referee; and as such referee I caused to be published once a week for six successive weeks in the , a newspaper published in the county wherein the place of trial is designated; and also wherein said 8 114: Eeaij Actions. property is situated; requiring each person not a party to this action, who had any lien upon any undivided share or interest in the property herein described (description), to appear before me at my office. No. street, in the city of Johnstown, N. Y., on the day of , 189 , to prove his lien and the true amount due or to become due to him by reason thereof. And I do hereby report that upon said date I was attended by the respec- tive counsel for the parties herein; and that there was presented to me upon said date, and duly proven, the fol- lowing liens, to wit: That is a creditor, and his lien which was satisfactorily proven before me, being a judgment against , one of the defendants herein, which judgment was filed in the Fulton county clerk's office on the day of , 189 , and amounts to the sum of dollars, and that there is now due thereon the sum of dollars (so proceed as to the name and extent of each lien, and the amount due and to become due thereof), which is a lien upon said defendant's share. All of which is respectfully submitted. Keferee. Interlocutory Judgment to Sell. (See text, page 65.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. S. A. Kellogg, Justice. ' Supreme Court — County of Fulton. (Title of the cause.) On reading and filing the report of , the referee appointed in the above-entitled action, by an order FoKMS OR Precedents in Partition. 115 of this court, made and entered on the day of , 189 ; and the report of , the referee appointed to ascertain liens; and on reading and filing proof of due ser- vice of this motion on , attorney for the defend- ant, ; and upon , attorney for , guardian ad litem for , an infant; and after due deliberation having been had. Now, on motion of C. W. S., attorney for the plaintiff, it is Ordered, adjudged and decreed. That the respective rights, shares and interests of the parties to this action, and to all the property mentioned and described in the complaint, are as follows : That the plaintiff, , is seized of and entitled to one undivided share thereof, sub- ject to an inchoate right of dower therein of his wife, the plaintiff, ; that the said , plaintiff, is thirty-eight years of age, and the said , his wife, is thirty years of age; that the defendant, , is seized of and entitled in fee simple absolute to one undivided part thereof, and is unmarried; that the defend- ant, , is seized of and entitled to one undivided part thereof; that the defendant, , is seized of and entitled in fee simple absolute, to one undivided part thereof, and is a minor under the age of twenty -one years. (Here recite the interests of the other defendants, who are minors, and the defendants who have an inchoate right of dower, or are tenants by curtesy.) That the defendant, , is the widow of , deceased, and is entitled to her dower right in the whole of said premises, and is of the age of years; and it having been found by said report that said property is so circumstanced that a partition cannot be made without great prejtidice to the owners; it is further Ordered, adjudged and decreed, That the said property mentioned and described herein, to wit: (Description), and all the estate, right, title and interest of the parties to the suit herein, whether creditors or otherwise; and the 116 EEAii Actions. rights of each, and any other person who may become entitled in said premises, be sold at public auction at the of the , in the city of aad county of Fulton, the county where said premises are situated, by and under the direction of , an attorney and counselor-at-law of the city of , who is hereby appointed referee for the purpose of making the sale; and that the said referee give due notices of such sale according to the direction of this court; that the said sale is to be made for cash; and that the plaintiffs or any one of the parties to this action may become a purchaser or purchasers thereof; and it is further Ordered, That the said referee, after completing said sale, file with the clerk of the county of , his report thereof under oath, containing a description of the property sold, with the name of the purchaser or pur- chasers thereof, of each parcel so sold, and the price that each parcel was so sold for. Notice of Sale. (See text, page 71.) Supreme Court — County of Fulton. (Title of the cause.) In pursuance of a judgment made and entered in the above-entitled action, in the oflBice of the clerk of the county of , on the day of , 189 , I, the undersigned referee, in and by virtue of said judg- ment, will sell at public auction at the front door of the Court Hotise in the city of Johnstown, N. Y., on Satur- day, the day of , 189 , at 10 o'clock a. m., the land and premises in said judgment directed to be sold therein, described as follows: (Description), to the highest and best bidder for cash. Dated at , this day of , 189 . HAEWOOD DUDLEY, Referee, Forms or Precedents in Partition. 117 Referee's Report of Sale. (See text, pages 71, 75.) Supreme Court — County of Fulton. (Title of the cause.) To the Supreme Court: I, , the referee appointed by an interlocutory judgment made and entered in the above-entitled action on the day of , 189 , which said order directed me to sell the premises described in said order, do hereby respectfully report as follows: First. That I advertised said premises to be sold at public auction by posting notices thereof at the entrance to the Court House in the city of Johnstown, N. Y., and at other public places in said city of Johnstown, N. Y. (name the places where posting was made), where the sale was to take place, at least forty-two days before the date of said sale. Second. That previous to said sale I also caused notices thereof to be advertised at least once a week for six successive weeks immediately preceding said sale, in the Johnstown Daily Eepublican, a daily paper published at the city of Johnstown, N. Y., where said property is so situated, containing a description of the property so ordered to be sold; and I do further report that on the day of , 189 , the date on which said prop- erty was so advertised to be sold, I attended at the time and place fixed for the sale, and exposed for sale to the highest bidder the said premises so advertised, and the said premises were then and there sold to , for the sum of dollars, that being the highest amount bid for the same, and that the terms were reduced to writing and duly signed by the said ; that the same is a description of the premises so sold to the above-named , purchaser (description); and I 118 Real Actions. do further report that the defendant is the widow of , deceased, and she has released her right .of dower in said described property; and that the said release is hereto annexed and made a part of this, my report. Dated this day of , 189 . Yours, etc., HARWOOD DUDLEY, Referee. Belease of Dower by Widow. (See text, page 79.) Supreme Court — Fulton County. (Title of the cause.) I, , the widow of , deceased, one of the defendants in the above-entitled action, hereby acknowledge the receipt from , the referee, who sold the real estate and property for the sum of | , being my share of the proceeds of said sale in said judg- ment in this action; and in consideration thereof I do hereby release and quit-claim to , and do hereby relinquish all my estate, right, title and interest and dower right in and to said premises so sold as aforesaid. Witness my hand and seal this day of , 189 . Sig. (Acknowledgment.) Notice to Apply for Confirmation of Referee's Report. (See text, page 79.) Supreme Court — County of Fulton. (Title of the cause.) Sir, — Take notice that I will apply at a Special Term of the Supreme Court of the State of New York, to be held Forms or Preoedents in Partition. 119 at the city of Amsterdam, N. Y., on the day of , 189 , for an order confirming the referee's report herein, a copy of which is hereto annexed; and for a final judgment directing the sale of said premises. CLARENCE W. SMITH, Attorney for Plaintiff. Office and post-office address. Cor. Main and William Streets, Johnstown, N. Y. To F. L. A., Defendant's Attorney, Johnstown, N. Y., and A. J. N., Attorney for , the Guardian ad litem, Johnstown, N. Y. Final Judgment to Sell. (See text, page 70.) At a Special Term of the Supreme Court of the State of New York, held in the city of Ams- terdam, N. Y., on the day of , 189 . Present — Hon. M. L, S., Justice. Supreme Court — County of Fulton. (Title of the cause.) This cause coming on for final hearing upon the report of the referee appointed to make sale of the property so sought to be partitioned in this case, which report bears date the day of , 189 ; and due notices having been given to the attorney for the defendants who have appeared herein; and due notices having been given to the attorney for the guardian ad litem of the infant defendants, of this application for the confirmation of said referee's report for final judgment thereon. Now, on motion of A. J. N., attorney for the plaintiff, and after 120 tlEAI. AcTlONg. hearing 0. W. S., as counsel for the defendant , and F. L. A., as counsel for the guardian ad litem of said infants, it is Ordered and adjudged, That said report, and the same hereby is in all things confirmed; and that said referee is hereby ordered to execute to the purchasers upon said sale a conveyance of the property so sold, upon said pur- chaser complying in all respects with the terms of said sale; and the said referee is hereby directed to deduct from the proceeds of said sale the costs and disburse- ments of said sale; and he is hereby directed to pay all taxes, assessments and water rates which are liens upon said property so sold; and he is also directed to deduct from the proceeds thereof the costs and expenses of the proceedings of this suit, which are adjusted at the sum of dollars (| ), and pay the same to the plaintiff's attorney herein; and it is further Ordered and adjudged. That said referee pay to the attorney for the guardian ad litem of the infant defend- ants , out of the proceeds of said sale the sum of dollars ($ ), as his costs and expenses of this action; and it is further Ordered and adjudged. That whereas the defendant, , is the widow of , deceased, and having by an instrument in writing, duly signed and acknowl- edged and filed releasing and relinquishing her dower right, and consented to receive a gross sum in lieu thereof, that she be paid the sum of dollars, that being the sum fixed in satisfaction of her right of dower to the premises so sold; and it is further Ordered and adjudged. That the said referee pay and distribute the residue of the proceeds of said sale remaining after paying said costs and expenses, taxes, assessments and water rates, and also said dower interest, to the following named parties: To the plaintiff the one Forms or PrecbCbnts in Partition, 121 undivided part thereof; to the defendant the one undivided part thereof, on his obtaining the release of his wife, the defendant , to him, of her inchoate right in said premises, duly executed and acknowledged, as required by law (and so continue as to the interest of each defendant herein) ; and it is further Ordered and adjudged. That the said referee bring into court and deposit with the county treasurer of the county of Fulton, subject to the order of this court, one equal undivided part thereof of said residue for the benefit of the owners unknown, to be invested in permanent security, at interest, for their benefit, until claimed by them or their legal representative; and it is further Ordered and adjudged, That said referee take a receipt for the amounts so paid by him, and file them with his final report to be made subsequent thereto; and it is further Ordered and adjudged. That the said purchaser be let into possession of said property, immediately upon the production of the referee's deed to said premises; and it is further Ordered and adjudged. That the said referee make report of his proceedings before the rendering of the final judgment. M. L. S., J. S. 0. Enter in Fulton county. (Note. — If there are any creditors who have estab- lished liens against said property, always insert a clause in said judgment with the names and the amounts due upon said liens, and also that the amounts due upon said liens be deposited or paid into court in payment of said liens; stating whether said liens are upon the whole of said property or upon any share or interest of any of the defendants of said property.) 122 Reai Actions. ITotice to Apply for Order Confirming Sale. (See text, page 79.) Supreme Court — County of Fulton. (Title of the cause.) You will please take notice that upon the referee's report of sale in this action, which was duly filed in the office of the clerk of the county of Fulton on the day of , 189 , a copy of which is hereby served upon you, and upon all the papers hereinbefore served, and all the proceedings had in the above-entitled action, I will move the Supreme Court, at a Special Term thereof to be held in the city of Johnstown, N. Y., on the day of , 189 , at the opening of the court or as soon thereafter as counsel can be heard, for an order confirm- ing said referee's report of sale, and for a final judgment in the above-entitled action, and for such other and further relief as to the court seems just and proper. Plaintiff's Attorney. Office and post-office address, To , Defendant's Attorney, and Attorney for , Guardian ad litem of , an infant. Referee's Final Beport. (See text, page 75.) Supreme Court — County of Fulton. (Title of the cause.) To the Supreme Court: I, , the referee duly appointed herein by an order of this court on the day of , 189 , Forms or Precebents in Partition. 123 having been ordered and directed by final judgment herein to make and certify to the disposition of the funds that came into my hands as said referee upon said sale of the property herein, in the above-entitled action, do herby make and file my report thereof, as follovrs: First. I have executed to , the purchaser upon said sale, a conveyance to the said property, he hav- ing complied in all respects with the terms upon said sale. Second. That I have deducted from the proceeds of sale the fees and disbursements to which I am entitled; and have paid all taxes, assessments and water rates which were liens upon said property; and have paid to , plaintiff's attorney, the sum of dol- lars as his costs and expenses of said proceedings; that I have paid to , attorney for , guardian ad litem for the infant defendants the sum of dol- lars as his costs and expenses of this action; that I have paid to , the widow of , deceased, the sum of dollars as her dower right in said property; that I have paid (here state the proportionate share of each of the parties, whether plaintiff or defend- ant, as is ordered by said final judgment); also, that I have brought into court and deposited with the county treasurer of the county of Fulton the sum of dol- lars as the share of infants and parties unknown; that I have taken receipts for the payment of the same, which said receipts are hereto annexed and made a part of this, my said report, all of which is respectfully submitted. HARWOOD DUDLEY, Eeferee. 124 Heal Actions. Order Substituting a Party, Upon the Beath of Either Party. (See text, page 58.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. L. W. E., Justice. Supreme Court — County op Fulton. (Title of the cause.) The above-entitled action having been commenced by the service of a summons and complaint on the day of , 189 , and it appearing to the court that since the commencement thereof that one of the defend- ants therein, to wit, , has since died; that his interest in said action has passed to a person who is not a party to the action. Now, on motion of C. W. S., attor- ney for plaintiff, it is ordered that said , to whom all the interest of said , deceased defend- ant, has descended, be and the same is hereby made a party defendant to this action; and that a supplemental summons may be issued to him to bring him in as a party in said action. L. W. E., J. S. C. Enter in Fulton county. Action for Dower. 125 CHAPTER III. Action for Dower. Jurisdiction. The jurisdiction to try all actions for the admeasure- ment of dower rights is in the Supreme and County Courts. Code, §§ 217 and 340. Facts necessary. j ; ' ■' ' " | i "'i The right to maintain an action for dower rests in the fact of a marriage, seizen during marriage, and death of the husband; the right existed at common law, and is regulated only as to its procedure by the statute. Where triable. The action is a local action, and must be tried in the county in which the land lies. Code, § 982. When the question tried by a jury. When the question is raised as to the right to bring the action, then the issue so made must be tried by a jury. Code, § 968. And then the proceedings are the same as in other actions. Parties plaintiff. The widow may maintain the action. Code, § 1596. Her assignee or a receiver in supplementary proceed- ings to whom her right has been assigned. Payne v. Becker, 87 N. Y. 153. Any person claiming to own the title or an interest in real estate, may bring an action to have a right of dower in the whole or any part of said property determined. Code, § 1647. But such action cannot be brought until four months after her husband's death. 126 Eeal Actions. Infant against the widow. An infant may bring an action against the wido-w who has wrongfully obtained dower by collusion with the infant's guardian. Code, § 1605; Ejectment, ch. 1, page 8. Parties defendant. The occupant of the property must be made defendant. Code, § 1597. When property not occupied. If unoccupied, then all persons exercising acts of owner- ship or claiming title thereto or an interest therein at the time of commencement of the action. Code, § 1597. Any person claiming title to or right of possession to the land may be made defendants. Code, § 1598. In an action to recover dower in a distinct parcel or of all the real property which the husband aliened by a con- veyance, all persons in possession or claiming title thereto, or any part thereof, may be parties defendant. Code, § 1599. When heirs necessary. When the action is against the heirs to recover dower and the rents and profits, all the heirs are necessary parties. Van Name v. Van Name, 23 How. Pr. 247. The right to bring the action when brought. The widow being entitled to the rental value of one- third of the real property of which her husband was seized during marriage, is entitled to have one-third of such estate set off to her, or she may consent to accept a gross sum, and is entitled to recover it; and if the land cannot be divided she is entitled to have it sold. Code, §§ 1613, 1617, 1619. When gross sum is to be estimated. The gross sum is to be estimated, and one-third of the value of the land at the date of its alienation. Sidway v. Sidway, 23 N. Y. St. E. 305. Action for Dower. 127 Free from taxes. She is entitled to have lands set off to her free from taxes due from her husband, if the personal property of the husband is sufficient to pay the same. Harrison v. Peck, 56 Barb. 251. Damages. She is also entitled to recover damages for the with- holding of her dower, such as are allowable by statute. Code, §§ 1600, 1601, 1602, 1603; Kyle v. Kyle, 67 N. Y. 400. Premises covered by mortgage. In premises covered by a mortgage executed by her and her husband, she is entitled to dower only, in the equity of redemption. Time -when the action must be brougbt. She must bring her action within twenty years after the death of her husband. Code, § 1596. But if she be vs^ithin the age of twenty-one, insane or imprisoned for less than life, or if her claim has at any time been recognized by deed or judgment of a court, such time is not a part of such limitation. Code, § 1596. Pleadings. Complaint. The complaint must state the marriage and the name of the husband, the seizen of the husband during marriage, and the death, and majs state that the husband died intes- tate. It should describe the land in which dower is claimed, with common certainty, 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 the property can be easily found and divided. Code, §§ 1511, 1606; Draper v. Draper, 11 Hun, 616. Damages must be alleged. And if damages are sought they must be alleged, and by what right plaintiff is entitled thereto, setting forth 128 Eeal Actions, the facts required by the Code, and that demand for dower had been made, and when. Code, §§ 1600, 1601, 1602, 1603. Judgment in th.e alternative. The demand for judgment may be in the alternative that a distinct parcel be set off, or in case it is imprac- tible that the property be sold, and that plaintiff have the use of one-third of the proceeds thereof. O'Dougherty v. Remington Paper Co., 42 Hun, 192. In an action against the widow who claims a dower, the complaint should allege what estate plaintiff has, and should describe the land as above, and if plaintiff admits defendant's right of dower he should, in addition, sub- stantially state the same facts as stated in a complaint by the widow, and that the defendant claims to have a right of dower, and that she is in all respects competent to maintain said claim, and that four months have elapsed since the death of her husband, and demand that her claim be admeasured. But if it does not admit her claim he should allege his estate, describe the land as above, and that defendant unjustly claims to have a right of dower in the whole or a part of the property, and that four months have elapsed since the death of her husband, and demand judgment that she be forever barred from such claim. Code, § 1647; Linden v. Doetseli, 40 Hun, 239. Lis pendens. It is not necessary to file lis pendens in an action for dower (although it may be), for the reason all persons purchase subject to the dower right. Defendant may answer or demur. Answer. The defendants by answer may deny any of the facts set forth in the complaint. Seizen of the husband may be denied, although the defendant is a grantee of the husband by warranty deed, he is not estopped. Finn v. Sleiglit, 8 Barb. 401; Sparrow v. Kingman, 1 N. Y. 242. Action foe Dower. 129 The acceptance of a gross sum in satisfaction of her claim may be pleaded as a bar. Code, § 1604. Judgment of divorce. Judgment of absolute divorce against her may be pleaded in bar. Code, § 1760. Proceedings. Keceiver. A receiver in a proper case upon a proper showing may be appointed. Egan V. Walsh, 43 Super. 402. Injunction. Also waste may be restrained pending the action. Code, § 1681. Survey. Also on a proper showing the court may order a survey. Code, § 1682. Finding of a jury. When the case is tried by a jury they must find by special verdict the facts. Vadney v. Thompson, 44 Hun, 1. Judgment by default. Upon default being made judgment can be only taken upon application to the court. Code, §§ 1212, 1214. Consent to accept a gross sum. At any time before the interlocutory judgment is ren- dered, on default, or at any time before trial on an issue joined, the plaintiff may file with the clerk a consent to accept a gross sum in lieu of her dower in the property described in the complaint, which must be duly executed like a deed, and serve a copy with notice of filing upon each party who has appeared or who does appear. Code, § 1617. The gross sum to which she is entitled is ascertained by the North Hampton tables. Rule 70. 9 130 EBAii Actions. Application to pay gross sum. At any time after consent is filed and before interlocu- tory judgment, any defendant may apply to the court upon notice, for an order granting him leave to pay said sum, whereupon the court may ascertain the value of said dower by reference or otherwise, and make an order directing the payment by the applicant of such sum ascer- tained within sixty days after a service of a copy thereof, and direct the execution by the plaintiff of a release of her dower upon receipt of the money. Code, § 1618. How order enforced. Said order may be enforced by contempt, as the striking out of the pleadings of the party disobeying, and render- ing judgment against him or her both. Code, § 1618. Reference. Where plaintiff has filed the consent, and she is entitled to an interlocutory judgment, the court must, upon appli- cation, ascertain by reference or otherwise, if a distinct parcel can be set off to plaintiff. Code, § 1619. Consent to take a distinct parcel. If the property consists of one or more vacant or improved lots the plaintiff's consent may contain a stipu- lation to take a distinct parcel out of those lots instead of a gross sum; in that case the interlocutory judgment may direct that commissioners be appointed to lay off said parcel. Code, § 1620. Order to admeasure dower. When the right of dower has been established an inter- locutory judgment must be rendered directing (unless the widow has filed her consent to accept a gross sum), that the dower particularly describing it be admeasured by a referee named or three commissioners. Code, § 1607; Bllieott v. Mosler, 7 N. Y. 201; Wltthaus v. Sehack, 38 Hun, 664; Klee v. Thompson, 42 N. Y. St. Bep. 426. Action for Dower. 131 Amount of dower. The widow is entitled to be endowed of one-third of the value of all lands aliened by the husband during cover- ture at the time of the alienation, and it must be ascer- tained on the trial the time of such alienation. Marble v. Lewis, 53 Barb. 432. Keferee to try the issues. A referee to try the issues cannot take proof as to the practicability of admeasurement unless that question has been raised by the pleading; but the court may. Still, the better practice is to order a referee to ascertain if actual admeasurement can be had. O'Douglierty v. Eemington Paper Co., 42 Hun, 192. Oath of tlie referee or commissioners. The referee or each of the commissioners must subscribe and take oath before an officer authorized in section 842, and must file said oath with the clerk before entering upon the execution of his or their duties. Code, § 1608; Gale v. Endsal, 8 Wend. 460. To fill vacancies. The court may fill any vacancies. Code, § 1608. Duties of the referee or commissioners. The referee or commissioners must, if they think it is for the best interest of parties, as speedily as possible lay off a distinct parcel constituting one-third of the prop- erty as plaintiff's dower, designating the part so laid off by posts or stones, or other permanent monuments. Code, § 1609; Leonard v. Steele, 4 Barb. 20, 23; Price v. Price, 41 Hun, 489. Improvements. If any improvements have been made on the property after the death of the husband, or after alienation thereof by him, such improvements should not be included in the part laid off, or if they are, then deductions must be made from the part so laid off equal to the benefit she derives therefrom. Code, § 1609. 132 Real Actions. Report. If the referee or commissioners should decide it was not practicable for the interests of all to lay off any dis- tinct parcel they should so report. Code, § 1609. Bights. They may employ a surveyor to assist if they choose. Code, § 1609. All commissioners must meet together, but a majority rules. Code, § 1610. Keport. The referee or commissioners or a majority of them, must make a full and complete report of their proceed- ings. Which report must be acknowledged as a deed. Code, § 1610; Price v. Price, 11 Civ. Pro. Bep. 364. Coitrt may set aside. Upon application and good cause shown the court may set the report aside and appoint ai new referee or new commissioners. Code, § 1611; Jackson v. Waltermire, 7 Cow. 353. Final judgment. Final judgment must be rendered upon the report being confirmed, that the widow is entitled to the possession during her natural life of the parcel set off to her. Code, § 1613. Eixed sum in lieu. If the report is that it is impracticable to set off a dis- tinct parcel, then it should award that a fixed sum be paid her annually during her life equal to one-third of the rental value of the real property as ascertained, and that said sum be and remain a charge upon the property. Code, § 1613. It may also award damages for the withholding of her dower. Code, § 1613; Graham v. Linden, 50 N. Y. 547; Jackson V. Miller, 17 Johns. 123; Jackson v. Clarke, 5 Cow. 168; Mclntyre v. Clark, 6 N. X. St. R. 531; Price v. Price, 41 Hun, 489. Action foe Dowbii. 1S3 Action to teoover sum awarded. The plaintiff may enforce payment of the sum awarded by action against the owner or against the property. Code, § 1614. Order to increase or decrease the amount. If at any time it is made to appear that the rental value has increased or diminished, the court may make an order upon notice to all parties interested, modifying the final judgment by increasing or diminishing the sum paid plaintiff. Code, § 1614. Lien upon the property. A lien upon the property inferior to plaintiff's rights, attaches to the residue of the property when a portion is set off to the widow. Code, § 1615. Appeal. An appeal may be taken from the final judgment. Code, § 1616. If the appeal is taken from the judgment awarding a part of the property to the widow, it does not stay the execution thereof unless granted by the court, and will not then be stayed if the widow gives an undertaking. Code, § 1616. Sale. In these proceedings when it appears to the court that the widow has filed her consent to accept a gross sum in lieu of her dower, the interlocutory judgment must direct a sale of the premises by the sheriff or a referee named therein. Code, § 1619; O'Dougherty v. Rem. Paper Co., 42 Hun, 192; Price v. Price, 11 Civ. Pro. Hep. 365. To ascertain liens. Before the interlocutory judgment is rendered a refer- ence must be ordered to ascertain what liens, if any, exist against the property, unless the party produce a proper search. Code, §§ 1561 and 1621; Clark v. Clark, 84 Hun, 362. 134 UeaIi Actions. If the dower is inferior to the lien the court may direct the land to be sold subject to such lien, or that it be satis- fied out of the proceeds of the sale. Code, § 1622; Clarke v. Clarke, 65 N. Y. St. E. 487. Parties botiiid by the sale. If the sale is confirmed each party to the action and every person deriving title through them, after the filing of the judgment roll or of the lis pendens, are barred of and from any right, title or interest therein. Code, § 1619. Manner of conducting the sale. The proceedings to sell are the same as in. partition. See ante, pages 71-76. Purchase money mortgage. ^ The dower is subject to a purchase money mortgage, whether the widow has signed or not. Brackett v. Baum, 50 N. Y. 8. Beport of sale. After completing the sale and executing the proper con- veyances the officer making the sale must make and file his report thereof with the clerk. Code, § 1623; Clark v. Clark, 84 Hun, 362. Court to ascertain the rights of each party and the value of dower. The court, after confirming the sale, must ascertain by reference or by taking proof, what are the rights of each party to the proceeds, and what is the value of the widow's dower by the North Hampton tables, and must render final judgment confirming the sale and directing that the sum so found be paid the widow, and the remainder be divided among the persons entitled thereto. Code, § 1624; Clark v. Clark, 65 N. Y. St. Rep. 487. Pees and expenses to be taxed. The fees and expenses must be taxed under the direc- tion of the court, and the amount paid by the plaintiff and taxed in her costs. Code, § 1612. Action i^or DowfeR. 135 Costs. ' ' The plaintiff is entitled to costs, of course, upon a judg- ment in her favor. Code, § 3228. ! The admeasurement of dower is conclusive, and plaint- iff has no right to any of the remainder of the property. Graham v. Linden, 50 N. Y. 547. Her title relates back to the date of the husband seizen, if after marriage, or to the date of marriage, and she is entitled to the crops upon the part assigned if planted or sowed by the husband and the fruit and grass not gath- ered or cut when the dower was assigned. Lawrence v. Brown, 5 N. Y. 394; Kain v. Fisher, 6 N. Y. 597. Injunction. An injunction cannot be granted to stay an action for dower after verdict unless an undertaking be given to pay all damages and costs. Code, § 616. Such damages include the rents and profits and all waste committed. Code, § 617, Execution to enforce judgment. Judgment for dower may be enforced by execution. Code, § 1240; Skinner v. Odenbach, 81 Hun, 315. Preferred causes. An action for dower is a preferred cause upon proper showing by proof by affidavit that the widow has no suffi- cient support aside from her dower. Code, § 791, sub. 6; Bartlett v. Musliner, 92 N. Y. 646. Widow of an alien. A widow of an alien who dies within six years after filing his deposition to become a citizen, and before he is admitted to citizenship, is entitled to dower. Laws 1896, ch. 547, § 5; Nolan v. Command, 11 Civ. Pro. Rep. 297. , Arbitration. The settlement of a dower right cannot be submitted to arbitration. Code, § 2365. 136 Real Actions. Dower in a contract. The widow is entitled to dower of one-third of the bal- ance in a contract held by her husband for lands, after deducting all moneys due thereon. Code, § 2794. Dower in lands sold to pay decedent's debts. Lands sold to pay decedent's debts are not subject to dower rights unless said dower has been assigned; and if the same has been assigned then the grantee takes the part assignd to her subject to her dower right. Code, § 2778; Estate of Height, 14 Civ. Pro. Rep. 359. Forms, etc., in Action B'or Dowee. 137 PRECEDENTS. Complaint for Dower. (See text, page 127.) SxiPEEMB Court — County of Fulton. EMMA J. O'CONNOR, Plaintiff, against MARY P. O'CONNOR and FRANK V. O'CONNOR, as Heirs-at-law and Next of Kin of JAMES M. O'CON- NOR, Deceased. Plaintiff complains of the above-named defendants, and alleges as follows: First. That plaintiff was lawfully married to the said James M. O'Connor, and lived and co-habited with him until the time of his death, which occurred on the day of , 189 ; that the said James M. O'Connor, during said marriage and co-habitation, and at the time of his death, was seized and possessed of the following described lands situate in the county of Fulton and State of New York, to wit: (Description.) Second. Plaintiff further alleges that she is entitled to one undivided third part of said described premises for her life, as her reasonable dower in said described premises. Third. That the said James M. O'Connor left surviv- ing him, besides the plaintiff herein, the said defendants Mary P, O'Connor and Frank V. O'Connor, as children and heirs-at-law; and that upon his death said lands and premises hereinabove described descended to said chil- 138 Ueal AclrioNg. dren, as heirs-at-law of the said deceased; and that plaint- iff, as his wife, has a dower right in said premises. Fourth. Plaintiff further alleges that at the time of the commencement of this action that said heirs, the defendants herein, were and now are in possession of and occupy said premises, claiming title thereto and the right to possession of said premises; and that they unlawfully and unjustly withhold from the plaintiff the possession and use of her said one-third part thereof as her dower right in said premises. Fifth. Plaintiff further alleges that the annual value of the mesne profits of the property so occupied by the defendants since the death of the said James M. O'Connor, deceased, which have accrued within six years since his death, with the interest thereon, amounts to the sum of doUaj-s ($ ). Wherefore, plaintiff demands judgment that she recover the possession of her one undivided one-third part of said premises for her life, against the said defendants Mary P. and Frank V. O'Connor. I. That the said dower of the plaintiff of the lands and premises hereinbefore described may be set off and admeasured to the plaintiff by a referee appointed for that purpose (or commissioners), in such a way as the court may direct, and in case it is impracticable to so set off and admeasure said dower, that the property may be sold, and that the plaintiff have the use of one-third of the pro- ceeds thereof. II. That the said plaintiff further recover damages of the said defendants for the withholding of her dower right, from the time of the death of the said James M. O'Connor, deceased, to the commencement of this action, being the amount of one-third of the annual value of the mesne profits of said property, with interest, amounting Forms, etc., in Action i'Or Dower. 189 in all to I , and that she have the costs of this action. JOHN M. CARROLL & SON, PlaintiflE's Attorney, Kennedy Building, Johnstown, N. Y. (Verification.) Complaint for Dower in Aliened Property. (See text, page 131.) Supreme Coxirt — County op Fulton. EMMA J. O'CONNOR, Plaintiff, against JOHN A. WHITE, Defendant. Plaintiff complains of the above-named defendant, and alleges as follows: First. That she is the widow of James M. O'Connor, late of the city of Johnstown, county of Fulton and State of New York; that the said James M. O'Connor, deceased, died in the said city of Johnstown, N. Y., on the day of , 189 , intestate, leaving him surviving this plaintiff and Mary P. and Frank V. O'Connor, as children and heirs-at-law of the said James M. O'Connor, deceased. That the said deceased was, during his lifetime, seized of and in possession of the property hereinafter described, which said property the said deceased, during the cover- ture of this plaintiff by a deed in writing conveyed and aliened to the defendant herein all of the said property situated in the county of Fulton and State of New York, bounded and described as follows: (Description.) Second. Plaintiff further alleges that upon the death of the said James M. O'Connor, deceased, she, as his widow, became entitled to and is entitled to her dower 140 EEAii Actions. right in said premises to the extent of the life use of one- third thereof. Third. Plaintiff further alleges that on the day of , 189 , and since the death of said James M. O'Connor, deceased, she has demanded of the defendant her dower right in said premises ; and that the said defend- ant wrongfully and unlawfully withholds the same from the said plaintiff herein, and refuses to admeasure to and pay over to this plaintiff the same. Fourth. Plaintiff further alleges that the amount of one-third of the annual mesne profits of said described property, with the interest, amounts to the sum of dollars, and that she is entitled to recover as her damages the sum of dollars, being the amount of said mesne profits since the time she made her demand for her dower right herein, over and above the use of any perma- nent improvements made by said defendant herein since the death of her said husband. Wherefore, plaintiff demands judgment: I. That she recover the possession of her one undivided one-third part of said premises as her dower right, against the said defendant herein. II. That the said dower of the plaintiff of the lands and premises hereinbefore described may be set off and admeasured to the plaintiff by a referee appointed for that purpose (or commissioners), in such a way as the court may direct; and in case it is impracticable to so set off and admeasure said dower, that the property may be sold, and that the plaintiff have the use of oneithird of the pro- ceeds thereof. III. That the said plaintiff further recover damages of the said defendant for the withholding of her dower right from the time of the demand, to wit, from the day of , 189 , to the commencement of this action, being the amount of one-third of the annual mesne profits Forms, etc., in Action for Dower. 141 of said property, with interest, and that she have the costs of this action. JOHN M. CAREOLL & SON, Plaintiff's Attorney. Oflace and post-office address, Kennedy Building, Johnstown, N. Y. (Verification.) Complaint to Compel Determination of Dower. (See text, page 127.) Supreme Court — County of Fulton. JOHN A. WHITE, Plaintiff, against EMMA J. O'CONNOR, Defendant. Plaintiff complains of the defendant, and states the fol- lowing facts to the court : First. That he is the owner in fee of all the following described premises, situate in the county of Fulton and State of New York, bounded and described as follows, to wit: (Description.) Second. That the defendant herein is the alleged widow of James M. O'Connor, deceased, late of the city of Johnstown, N. Y., and claims to have a right of dower in the whole of said property. Third. Plaintiff further alleges, upon information and belief, that said defendant is not, and never was legally and lawfully married, and is not the widow of the said James M. O'Connor, deceased, and is not entitled to any dower right in said property, and that her claim thereof is unjust, illegal and unlawful. 142 Eeal Actions. Fourth. Plaintiff further alleges that four months has elapsed since the death of the said James M. O'Connor, deceased, the alleged husband of the defendant herein. Wherefore, plaintiff asks judgment that a determina- tion of her claim may be had, and that she be forever barred from said claim, and that he have the costs of this action. FEANK L. ANDERSON, Plaintiff's Attorney. 0£5ce and post-offlce address, 142 West Main Street, Johnstown, N. Y. (Verification.) Defendant's Answer to Complaint for Dower. (See text, page 128.) Supreme Coubt — County op Fulton. EMMA J. O'CONNOR, Plaintiff, against JOHN A. WHITE, Defendant. The defendant for answer to the plaintiff's complaint herein: First. Denies that the said James M. O'Connor, deceased, was ever seized of and the owner of the lands and premises described in the complaint of the plaintiff's. Second. Defendant denies all of the allegations con- tained in the complaint of the plaintiff's, wherein plaint- iff alleges that she is the widow of the said James M. O'Connor, deceased. Third. Defendant further answers the plaintiff's com- plaint and alleges that on the day of , 189 , in the Supreme Court of the State of New York, the said James M. O'Connor, deceased, by a judgment made and Forms, etc., in Action foe Dower. 143 entered in said court, obtained of the plaintiff lierein a judgment of divorce, divorcing him from the said plaint- iff, whereby, by said judgment said plaintiff was shut off and precluded from any and all right of dower in and to the premises and property described in plaintiff's com- plaintiff, which were conveyed to this defendant, after and since the entry of said judgment of absolute divorce. Wherefore, defendant asks a dismissal of plaintiff's complaint, with the costs of this action. FEANK L. ANDEESON, Defendant's Attorney. Office and post-office address, 142 West Main Street, Johnstown, N. Y. (Verification.) j Verdict of Jury. (See text, page 129.) Supreme Court — County of Fulton. EMMA J. O'CONNOR, Plaintiff, against JOHN A. W^HITE, Defendant. We, the jury in the above-entitled action, do hereby find a verdict in favor of the plaintiff; that she is the widow of the said James M. O'Connor, deceased, who, dur- ing his lifetime was seized of and entitled to the property described in the complaint, and that, as said widow of the said James M. O'Connor, deceased, she is entitled to her dower right in said property. JAMES SMITH, Foreman of the Jury. Dated the day of , 189 . 144 Eeai, Actions. Interlocutory Judgment by Default. (See text, page 129.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N, Y., on the day of , 189 . Present — Hon. M, L, Stover, Justice. EMMA J. O'CONNOR, Plaintiff, against JOHN A. WHITE, Defendant. The above-entitled action having been commenced in this court by the service of a summons and com- plaint upon the defendant herein on the day of , 189 ; and it appearing to the court that the said defendant has made default by not appearing and plead- ing to said complaint herein in the time required by law. Now, on application of William H. Bass, Esq., attorney for the plaintiff, it is Ordered and adjudged, That the plaintiff be and she is hereby entitled to her dower right in and to the following described property, situate in the county of Fulton and State of New York, bounded and described as follows: (Description); and it is further Ordered, That the plaintiff's dower in said described property be admeasured by , Esq., who is hereby appointed referee for that purpose, and that he also ascer- tain if the said plaintiff is entitled to any damages by reason of the withholding of her dower right in said prem- ises; and that he report to this court with all convenient speed. Enter in Fulton county. M. L. S., J. S. 0. (Note. — This order is the same where a verdict is made entitling plaintiff to a dower.) Forms, etc., in Action for Dowbe, 145 Notice of Motion for th.e Appointment of Beferee. (See text, page 130.) Supreme Court — County of Fulton. EMMA J. O'CONNOR, PlaintifC, against JOHN A. WHITE, Defendant. Sir. — Take notice that upon the verdict rendered upon the trial of the above action at the Trial Term of this court, held in the city of Johnstown, N. Y., on the day of , 189 , before Hon. M. L. S., justice, and a jury; and the jury having found a verdict in favor of the plaintiff; and that she is entitled to her dower right in the premises described in the complaint thereon ; and upon all the proceedings had and the papers filed thereon, and upon the official searches to be produced herein, a motion will be made at a Special Term of the Supreme Court to be held in the city of Amsterdam, N. Y., at the chambers of the Hon. M. L. S., justice, on the day of , 189 , at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order appoint- ing a referee to ascertain whether a distinct parcel of said real property can be admeasured and set ofE to this plaint- iff as her dower right without material injury to the interest of the parties herein, or if a distinct parcel cannot be so laid off for an order directing a sale of said premises by the referee named therein; and for a further order directing that the said referee is to ascertain whether any persons not a party to this action has a lien on said prem- 10 146 Keal Actions. ises, or any part thereof; and for such other and further relief as to the court may be just and proper in the premises. FRANK L. ANDERSON, Plaintiff's Attorney. Office and post-office address, 142 West Main Street, Johnstown, N. Y. To Clarence W. Smith, Esq., Defendant's Attorney, Johnstown, N. Y. (Note. — This is the same notice where there is default only stating " default has been made.") Order for Reference. (See text, page 130.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. EMMA J. O'CONNOR, PlaintifC, against JOHN A WHITE, Defendant. The above-entitled action having been brought on for trial at a regular trial term of this court, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 , and a verdict having been rendered declaring the plaintiff to be entitled to her dower right in the real property described in the complaint; and due notices having been made and served of the application to be made to this court for the appointment of a referee to admeasure and fix the said dower right in said prop- FoEMS, ETC., IN Action for Dower. 147 erty, which said notice was served upon the parties herein. Now, on motion of Frank L. Anderson, attorney for the plaintiff, and no one appearing in opposition thereto, it is Ordered, That it be referred to , Esq., a coun- selor-at-law, to ascertain the value of the plaintiff's right of dower in the premises described in the complaint, and to admeasure the same, and set off and apportion to the said plaintiff the distinct parcel of said premises, being one-third of the value of the same; and if said premises cannot be so apportioned without material injury to the parties herein concerned, to so report; and also to ascer- tain the value and amount of plaintiff's damages; and if there are any liens against said property; and to make his report to this court with all convenient speed. Enter in Fulton county. M. L. S., J. S. C. Oath of Beferee or Commissioners. (See text, page 131.) Supreme Court — Fulton County. (Title of the cause.) I, the undersigned referee, do solemnly swear that I will faithfully, honestly and impartially execute the trust imposed in me by the interlocutory judgment herein entered on the day of , 189 , appointing me as referee to admeasure the dower right of the plaint- iff herein, in and to the property described in said judgment. Eeferee. (Jurat.) (Note. — This same oath may be taken by the three commissioners.) 148 Keaij Actions. Order Appointing Hearing Before Beferee. (See text, page 131.) Supreme Coubt — Fulton County. (Title of the cause.) I, the undersigned referee, duly appointed by an order made and entered in the Fulton county clerk's office on the day of , 189 , whereby it was referred to me to admeasure the dower of Emma J. O'Connor, the plaintiff herein, do hereby appoint the day of , 189 , as the date for the admeasurement of said dower, and you are hereby ordered to appear at my office. No. 2 North William street, in the city of Johnstown, N. Y., as the place for the hearing in said matter. Dated at Johnstown, N. Y., this day of , 189 . C. W. S., Eeferee. Notice of Hearing Before a Kef eree. (See text, page 131.) Supreme Court — Fulton County. (Title of the cause.) Sir.— Take notice that you are hereby notified of a hear- ing to be held before Clarence W. Smith, Esq., as referee, at No. 2 North William street, in the city of Johnstown, N. Y., on the day of , 189 , by virtue of an order of hearing heretofore made by the said referee in the above-entitled matter. Yours, etc., FRANK L. ANDERSON, Attorney for Plaintiff. Office and post-office address, 142 West Main Street, Johnstown, N. Y. To R. P. Anibal, Esq., Defendant's Attorney, Johnstown, New York. Forms, etc., in Action for DoweR. 149 Referee's Report. (See text, page 132.) StTPRBME Court — County of Fulton. (Title of the cause.) To the Supreme Court of the State of New York: I, William H. Bass, the referee appointed by an order of this court made and entered on the day of , 189 , to admeasure the dower right of Emma J. O'Connor, the widow of James M. O'Connor, deceased, in and to the property of which said deceased was seized, and which property is situated in the county of Fulton and State of New York, and described as follows: (Description), do respectfully report as follows: That before entering upon the duties as said referee I took and filed the oath of office as prescribed by law. Second. That on the day of , 189 , 1 was attended at the premises hereinbefore described by Frank L. Anderson, the attorney for the said widow; and by the defendants' attorney Clarence W. Smith; and that they appeared before me at the time and place aforesaid; and I took evidence of the permanent improvements made thereon after the death of the said plaintiff's husband. Third. I do further report that in my opinion, that it is not for the best interest of the parties concerned to admeasure and lay off to the said Emma J. O'Connor, the plaintiff herein, a distinct parcel of the said property, for the following reasons: First. That the property consists of flats and tenement houses situate in the city of Johnstown, N. Y., and that the same cannot be divided or separated without injuring the value of the rest of the property; and if any part should be admeasured and one-third thereof set apart for said plaintiff, it would render the remaining part prac- tically useless to the defendants herein. 150 Hbai, Actions. I do further report that I was attended at my office wherein said parties duly appeared by their respective attorneys and took testimony of several of the witnesses to ascertain the rental value of said property; the testi- mony of said witnesses is hereto annexed; and I do further report that after hearing the testimony of the said wit- nesses as aforesaid, I ascertained that the rental value of the said property, not including the improvements made thereon since the death of said plaintiff's husband, is the sum of dollars per annum; and I do further report that as such referee, my charges are as follows: Attendance at said property to ascertain if prop- erty could be so admeasured $10 00 For services to ascertain rental value of said property, one day 10 00 One day in preparing report 10 00 Total $30 00 In witness whereof I have hereunto set my hand this day of , 189 . WILLIAM H. BASS, Referee. (Acknowledgment.) (Note.- — The usual eight days' notice of hearing must be given to all parties.) Keport of Beferee to Admeasure Bower. (See text, page 132.) Supreme Court — Fulton County. (Title of the cause.) To the Court: I, the undersigned referee, duly appointed by an inter- locutory judgment of this court, made and entered on the day of , 189 , to admeasure the dower right Forms, etc., in Action for Dower. 151 of the plaintiff herein as the widow of , deceased, of the property hereinafter described, situate in the county of Fulton and State of New York, do make and render my report as follows: First. That I took and filed the oath of office as required by law. Second. That I did, on the day of ,189 , meet at my office, No. street, in the city of Johns- town, N. Y., to execute the trust reposed in me, as afore- said, and was attended by , attorney for the plaintiff, and , attorney for the defendant; whereupon I did cause a survey of said premises and lajids set forth in said judgment, and hereinafter more particu- larly described, to be made in the presence of the said parties, which said premises are described as follows: (Description) ; and I did cause a map of said survey, which is hereto annexed, to be made; and I do further report that I have admeasured and laid off to the said plaintiff for her dower right one-third part of the said premises, which said premises are described and bounded as fol- lows: (Description); and that the same is particularly designated by posts and permanent monuments ; and I do further report that the following items are my charges attending the said admeasurement, including my fees as said referee. 2 days' services, at |5 per day |10 00 Cash paid to , as surveyor, for 1 day .... 5 00 Cash paid to 2 assistants of said surveyor, |2 per day 4 00 Total $19 00 In witness whereof, I have hereunto set my hand this day of , 189 . WILLIAM H. BASS, Referee. (Acknowledgment.) 152 Real ActfiONS. Notice for Application for Final Judgment. (See text, page 132.) Supreme Court — County of Fulton, (Title of the cause.) Sir. — Take notice that I, the undersigned attorney for J;he plaintiff herein, will apply to this court, at a Special Term thereof, to be held in the city of Johnstown, N. Y., on the day of , 189 , at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order confirming the referee's report herein, made and duly filed in the Pulton county clerk's office on the day of , 189 , and for the appointing of a referee to ascertain the amount of plaintiff's damages; and for such other and further relief as to the court seems just and proper. Yours, etc. FRANK L. ANDERSON, Attorney for Plaintiff, 142 West Main Street, Johnstown, N. Y. To R. P. Anibal, Esq., Defendant's Attorney, Johnstown, New York. Order of Final Judgment for Admeasurement. (See text, page 130.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — County of Fulton. (Title of the cause.) On reading and filing the report of William H. Bass, Esq., the referee appointed pursuant to the interlocutory PORMS, ETC., IN AcriOM FOR DoWER. 153 judgment made and entered herein on the day of , 189 , to admeasure the dower of the plaintiff, Emma J. O'Connor, in the property situated in the county of Fulton and State of New York, which said property is described in said judgment, and which report bears date on the day of , 189 , and by which report it appears, among other things, that the said referee has caused a survey to be made of the lands and premises in the said judgment particularly described; and that he caused a map thereof to be made; and that he has admeas- ured and laid off to the said Emma J. O'Connor, plaintiff herein, for her dower right, the one-third part of the said lands and premises, which said one-third part is herein- after described; and due notices of this motion having been given to the defendant's attorney. Now, on motion of Frank L. Anderson, attorney for plaintiff, and after hearing Clarence W. Smith, Esq., attorney for the defend- ant, in opposition thereto, it is Ordered, That the said report of the said referee, and the admeasurement therein made by him be, and the same is in all things confirmed; and it is further Ordered, That the said , plaintiff, be and she hereby is awarded during her natural life the possession of the premises described as follows, to wit: (Description), subject to the payment of all taxes, assessments and other charges accruing thereon after she so takes possession thereof; and it is further Ordered, That the plaintiff recover thereof against the defendant | , the amount of damages to which she is entitled to for the withholding of the dower by the defendant; and that , Esq., be and he hereby is appointed referee to ascertain the amount of the said damages; and that the plaintiff may also recover of and against the defendant, her costs of this action. Enter in Fulton county. M. L. STOVER, J. S. C. 154 Eeal Actions. X'inal Judgment of Admeasurement. (See text, page 132.) Supreme Coukt — County of Fux,ton. (Title of the cause.) An order of this court having been duly made and entered herein on the day of , 189 , con- firming the report of the referee herein, dated the day of , 189 , awarding to the plaintiff, Emma J. O'Connor, during her natural life, the possession of the premises described as follows, to wit: (Description), sub- ject to the payment of all taxes, assessments and other charges accruing thereon after she takes possession thereof; and the report of William H. Bass, Esq., referee, who was herein appointed referee by said order having been made and filed, by which he awards to the said plaintiff the sum of dollars as the amount of her damages for the withholding of her dower by the defend- ant; and the order having been duly made and entered confirming said report, and directing the payment of the said amount by the defendant, it is adjudged that the plaintiff is hereby awarded, during her natural life, the possession of the above-described premises; and that the plaintiff recover of and against the said defendant the sum of dollars, damages, and the further sum of dollars as her costs of this action as taxed at the sum of dollars, in all amounting to the sum of dollars. C. H. BUTLEE, County Oerk, Fulton County. Forms, etc., in Action for Dower. 155 Beport of Referee as to Damages. (See text, page 127.) Supreme Court — Fulton County. (Title of the cause.) To the Court: I, the undersigned referee, duly appointed by an order of this court, made and entered herein on the day of , 189 , whereby it was referred to me to ascer- tain and report the amount of damages to which Emma J. O'Connor, as plaintiff herein, is entitled, for the with- holding of her dower by the defendant , herein, do report as follows: First. That before entering upon my said duties as referee, I took and filed the oath of office as prescribed by law. Second. That on the day of , 189 , the day which was duly appointed by the notices which were given, I was duly attended at my office No. Wil- liam street, in the city of Johnstown, N. Y., by Frank L. Anderson, Esq., attorney for the plaintiff, and E. P. Anibal, Esq., attorney for the defendant herein; and that I proceeded to take testimony as to the value of the rents of said property since the time of the death of , deceased, husband of , the plaintiff herein; and from said testimony I found that the value of the annual rental of said property since said time, not includ- ing anything for the value of the permanent improve- ments placed thereon, amounts to the sum of dol- lars; and I do further find that said , deceased, departed this life on the day of , 189 ; and that the plaintiff is entitled to recover the sum of dollars, being the value of one-third of the mesne profits of said property for years. All of which is respectfully submitted. CLARENCE W. SMITH, Referee. 156 Beal Actions. Order of Reference to Ascertain Value of Dower Bight. (See text, page 130.) At a Special Term of the Supreme Court of the State of New York, held in the city of Johns- town, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. SUPEBME COUKT — FXILTON COUNTY. (Title of the cause.) On reading and filing the report of , the referee appointed to admeasure the dower of the plaintiff in the property described in the complaint, and by an interlocutory judgment made and entered herein on the day of , 189 , by which report it appears that it is not practical to admeasure and lay off a distinct parcel of said property; and due notices of this motion having been given to the defendant's attorney. Now, on motion of Frank L. Anderson, the attorney for the plaint- iff, and after hearing R. P. Anibal, Esq., attorney for the defendant, in opposition thereto, it is hereby Ordered and decreed. That it be referred to , Esq., an attorney-at-law, of the city of Johnstown, N. Y., as referee, to ascertain the sum equal to the one-third of the rental value of said property, to be paid to the plaint- iff annually during her natural life as for her dower right in said property; and it is further Ordered, That the said referee ascertain the amount of plaintiff's damages by reason of the withholding of her dower by the defendant; and that the said referee report to this court with all convenient speed. Enter in Fulton county. M. L. STOVER, J. S. C. (Note. — Notice of application as on other orders.) Forms, etc, in Action for Doweb. 157 Keport of Referee as to Value of Dower. ISee text, page 130.) Supreme Court — Fulton County. ' (Title of the cause.) To the Court: I, the undersigned referee, duly appointed by an order of this court made and entered on the day of , 189 , by which it was referred to me to ascertain and report a sum equal to one-third of the rental value of the property described in this action, to be paid to the plaint- iff herein as her dower; and also to ascertain the damages she has sustained by reason of the withholding of the same, do hereby report as follows: First. That I took and filed the oath of office as pre- scribed by law. Second. That I was attended at my office on the day of , 189 , after having given due notice of said hearing by Frank L. Anderson, attorney for the plaintiff, and E. P. Anibal, Esq., attorney for the defendant; and after hearing all parties concerned therein I did find that the said plaintiff is entitled to receive as her dower right annually during her natural life the sum of dol- lars, that being one-third of the rental value of said prop- erty; and I do further report and find that the plaintiff is entitled to recover of the defendant as damages, by reason of the withholding of the dower, the sum of dollars, being for one-third of the annual value of the mesne profits of said property since the death of , deceased, husband of , the plaintiff herein, to the time of the commencement of this action, not includ- 158 Keax Actions. ing the use of any permanent improvements placed thereon. All of which is respectfully submitted. CLAKENOB W. SMITH, Referee. (Note. — Notice of the hearing of the reference and the application of the confirmation of the referee's report after final judgment, is the same as shown before in like proceedings.) Order Confirming Keferee's Beport. (See text, page 130.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Coxxkt — Fulton County. (Title of the cause.) On reading and filing the report of Clarence W. Smith, Esq., the referee appointed by an order of this court, made and entered on the day of , 189 ; and due notices of this motion having been given to the defendant's attorney. Now, on motion of Frank L. Anderson, attorney for the plaintifif, and after hearing R. P. Anibal, attorney for the defendant, in opposition thereto, it is Ordered, That the report of the said referee be and the same is in all things confirmed, and that the sum of dollars, that being the amount ascertained by said report as the sum equal to one-third of the rental value of the property described in the complaint in this action, be paid to the plaintiff annually, during her natural life, as her Forms, etc., in Action for Dower. 159 dower in said property; and that the said sum so to be paid be and remain a charge upon the said property dur- ing her natural life; and that the plaintiff recover in this action from the defendants the amount of her damages for the withholding of her dower as found by said referee, to wit, the sum of dollars, and her costs of this action; and that the plaintiff have judgment accordingly. Enter in Fulton county. M. L. STOVER, J. S. C. Final Judgment in Action for Dower. (See text, page 130.) Supreme Court — County of Fulton. (Title of the cause.) To the Supreme Court: It is adjudged, pursuant to an order of this court, made and entered on the day of , 189 , that the sum of dollars, that being the amount equal to one- third of the rental value of the property described in the complaint in this action to be paid to the plaintiff annually during her natural life as for her dower in the said prop- erty; and that the said sums so to be paid be and remain a charge upon said property during her natural life; and that the plaintiff also recover from the defendant the amount of her damages for the withholding of the dower, to wit, the sum of dollars, with the sum of dollars, as costs of this action; and that execution issue therefor. C. H. BUTLER, County Clerk, Fulton County. 160 Eeax, Actions. Consent to Accept Gross Sum in Satisfaction of Dower. (See text, page 129.) Supreme Coubt — Fulton County. (Title of the cause.) I, Emma J. O'Connor, the plaintiff in the above-entitled action, do hereby consent to accept a gross sum in full satisfaction and discharge of my right of dower in the real property described in the complaint in the above- entitled action. In witness whereof, I have hereunto set my hand this day of , 189 . Sig. (Acknowledgment.) (Note. — This consent must be filed with the clerk of the county wherein the said plaintiff resides, before entry of judgment can be made, where default is made or before the commencement of trial where issue is joined; and a copy thereof, with notices, must be served upon each of the adverse parties to the action who has appeared, or who has appeared since the consent was filed.) AiBdavit of Leave to Pay. (See text, page 130.) Supreme Cotjrt — County of Fulton. (Title of the cause.) State of New York, ) f ss. : County of Fulton, ) , being duly sworn, says that he is one of the defendants named in the foregoing action; that the said action was brought to recover the dower right in and to the following described property: (Description); and de;f>ODent fuvther says, that the plaintiff herein has filed xi' h the clerk of the county of Fulton, in which county Forms, etc., in Action for Dower. 161 the said case is triable, her consent in writing duly acknowledged, to accept a gross sum in full satisfaction in discharge of her dower right in the premises described hereinbefore; and has served upon deponent a copy of said consent, a copy of which is hereto annexed ; and deponent further says that he desires leave of this court to pay said gross sum to the plaintiff herein. (Jurat.) Sig. Notice of Motion to Apply for Order Granting Leave to Pay. (See text, page 130.) Supreme Court — County of Fulton. (Title of the cause.) Sir. — Take notice that a motion will be made at a Special Term of this court, to be held in the city of Johns- town, N. Y., on the day of , 189 , at the opening of the court thereof, or as soon thereafter as coun- sel can be heard, for an order granting leave to the defendant to pay to the said plaintiff a gross sum in full satisfaction of her dower right in the property described in said complaint, said motion being made upon the affi- davits hereto annexed, and also upon the written consent of the plaintiff to accept a gross sum in lieu thereof of her dower right, which said consent is also hereto annexed; and for such other and further relief as to the court may be proper. Dated at Johnstown, N. Y., this day of , 189 . FRANK L. ANDERSON, Plaintiff's Attorney. Office and post-office address, 142 West Main Street, Johnstown, N. Y. To R. P. Anibal, Esq., defendant's attorney, Johnstown, New York. 11 162 Eeaij Actions. Order Granting Leave to Pay Gross Sum. (See text, page 130.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Coubt — Fulton County. (Title of the cause.) On reading and filing the affidavit of , verified on the day of , 189 , one of the defendants herein, to which is hereto annexed a copy of the consent of the plaintiff herein to accept a gross sum in full satis- faction of her dower right in the property described in the complaint in this action; and due notices of this motion having been given to the plaintiff's attorney; and the court having herein ascertained the value of the plaintiff's right of dower in the said property to be the sum of dollars, now, on motion of R. P. Anibal, Esq., attorney for the defendant, and after hearing Frank L. Anderson, Esq., attorney for the plaintiff, in opposi- tion thereto, it is Ordered and directed. That the defendant pay the sum of dollars within sixty (60) days after the ser- vice of a copy of this order; and it is further Ordered and directed. That the plaintiff herein give a receipt of said amount of money so received by her, and execute to the defendant thereupon a release of her said dower right in said premises described in the complaint in this action. Enter in Fulton county. M. L. STOVER, J. S. C. Forms, etc., in Action fob Dower. 163 Interlocutory Judgpnent to Sell in an Action for Dower. (See text, page 134.) At a Special Term of the Supreme Court of the State of New York, held in the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — Fulton County. (Title of the cause.) The consent of the plaintiff, duly executed, having been filed, by which she consented to accept a gross sum in full satisfaction in discharge of her dower right in the prop- erty described in the complaint in this action; and on application of the defendant, the court having ascer- tained by the report of Clarence W. Smith, Esq., the referee duly appointed for that purpose, that a distinct parcel of the property described in the complaint in this action cannot be admeasured and laid off to the plaintiff without material injury to the interests of the other parties herein, it is hereby Ordered and directed. That said property described as follows, to wit: (Description), and the estate, right, title and interest of the parties to this suit herein, including said plainiff's dower interest herein, be sold at public auction in the county of Fulton, where said premises are situated, by and under the direction of the said referee; and that the referee give a notice of the time and place of said sale as is required by law; and that the sale be for cash only; and that the plaintiff or any of the parties to this action may become purchasers thereto; and that the said referee pay into court the said moneys, after deducting the costs and expenses of this sale, to be appor- tioned and distributed by the order of this court; and it is further 164 Kbal Actions. Ordered, That the said referee, after completing said sale, file with the clerk of this court his report thereof, before the date of the confirmation of the said sale, and the interest of each party to this action; and every person deriving title from or through them, or any person not a party -who has any interest since the filing of the judg- ment roll, or any person who may have any right or inter- est in said property, be so sold. Enter in Fulton county. M. L. STOVEE, J. S. C. Referee's Report of Sale. (See text, page 134.) Supreme Court — County of Fulton. (Title of the cause.) To the Court: In pursuance of an order of this court, made in the above-entitled action on the day of , 189 , I, the undersigned referee, duly appointed by said order, do hereby respectfully report as follows: First. That I caused a notice of the time and place of sale of the premises mentioned in said judgment, and which were directed to be sold, to be conspicuously fas- tened up, at least forty-two days before the sale, in three public places in the city of Johnstown, N. Y. (here name the places where the notices were so fastened up), the city where the said sale was to take place; and that I caused a copy of the said notices to be published once a week for six successive weeks in two newspapers published in the county of Fulton, to wit, the Johnstown Daily Eepubli- can, a newspaper published in the city of Johnstown, N. Y., and the Johnstown Daily Democrat, a newspaper published in the city aforesaid ; and that I did on the Forms, etc., in Action for Dower. 165 day of , 189 , at one o'clock in the afternoon, meet at the time and place as specified in said notice, to wit, at the front door of the Court House, in the city of Johns- town, N. Y., and proceeded to place and expose for sale the said premises to the highest bidder, according to said judgment; and I do further report that said land was put up for sale and was struck ofE to , for the fol- lowing sum, to wit, dollars, he being the highest bidder, and that being the highest sum bid therefor; and I do further report that I have received from said , the said purchaser, the amount required to be paid by him in cash, according to the terms of which said sale was made; and that I have deducted from said proceeds of said sale of the amount that remained in my hands the sum of dollars, being the amount of my fees and expenses of said sale, of which the items are as follows: (Here state the items) ; and I do further report that I have paid into court the balance of said sum as directed by said order. All of which is respectfully submitted. CLAEENCE W. SMITH, Eeferee. (Note. — Notices must be given.) rinal Judgment tTpon Report to Sell. (See text, page 135.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. S., Justice. Supreme Court — ^ County of Fulton. (Title of the cause.) This action having come on to be heard upon the report of Clarence W. Smith, Esq., the referee duly appointed 166 Real Actions. herein by an interlocutory judgment, to make sale of the premises directed to be so sold by the said judgment; and that said premises were sold on the day of , 189 , and due notice having been served upon , attorney for the defendant. Now, on motion of Frank L. Anderson, attorney for plaintiff, and after hearing K. P. Anibal, attorney for the defendant, it is Ordered and adjudged. That the said report and the said sale be and the same is in all things confirmed; and the court having ascertained by the report of said referee as to the rights and interest of each of the parties in and to the proceedings, and of this sale; and has also ascer- tained what gross sum of money is equal to the value of plaintiff's dower in the net proceeds of said sale; and that the sum of dollars is equal to the value of said dower; and that the defendant , is entitled to one undivided part in the remainder of said pro- ceeds, and the defendant , is also entitled to one undivided part of the remaining part of said proceeds; and it is further Ordered and adjudged. That the gross sum so ascer- tained be paid to the plaintiff in full satisfaction of her said dower right; and that the amount of dollars be paid to , defendant herein, and that the amount of dollars be paid to , the other defendant herein ; and that the said proceeds having been paid into court, said parties are entitled to receive said amounts of the county treasurer of the county of Fulton; and he is hereby ordered and directed to pay the same to them, after deducting his fees and commissions. Enter in Fulton county. M. L. STOVEE, J. S. C. Forms, etc., in Action for Dower. 167 Judgment on Report of Sale. (See text, page 135.) Supreme Court — Fulton County. (Title of the cause.) It is adjudged, pursuant to an order of this court, made and entered herein on the day of , 189 , confirming the referee's report of sale, that the sum of dollars, that being the gross sum and value ascertained as being the dower right of the plaintiff herein, which sum plaintiff has consented to so accept in lieu of her dower, be paid to the plaintiff; and that the sum of dollars be paid to , defendant; and that the sum of dollars be paid to , defendant; and that the plaintiff have and recover from the defendant the sum of dollars, as her costs and expenses of this action. C. H. BUTLEE, County Clerk, Fulton County. Order Appointing Referee to Ascertain I Code, § 247, subd. 5, and § 2481, snbd. 11; Matter of Lynch, 33 Hun, 309; Matter of Dolan, 88 N. Y. 309. Title of purchaser. The title of a purchaser or mortgagee in good faith and for value from an heir or devisee, is not affected by the sale and conveyance of the property unless letters testa- Decedent's Keal Property. 319 mentary or of administration upon the estate of the dece- dent have been granted upon a petition presented to the Surrogate's Court within four years after the death of decedent. Code, § 2777; Parkinson v. Jacobson, 18 Hun, 353. Conveyances in other cases. Except as above, the purchaser at the sale takes all the estate, right and interest of the decedent at the time of his death, free from any claim for dower not assigned, but subject to all liens existing at the time of the death of decedent, unless said liens are decreed to be paid out of the proceeds of the sale, as provided by sections 2791 and 2793. Code, § 2778. Widow's dower assigned. But where the widow's dower is assigned the grantee takes such part to which her dower is assigned, subject to it. Code, § 2778; Estate of David Haight, 14 Civ. Pro. 359. Infants. All infants must appear by guardian. Code, § 2785. Proceeds. The proceeds must be paid into court. And for that purpose the court must make an order directing the same to be paid to the County Treasurer, a certified copy of which must be filed with said treasurer at the time of making the payment. Code, § 2786; General Rule of Practice, No. 68. Notice of distribution. Immediately after the payment of the money into court the Surrogate must cause notice of the time and place of making the distribution to be published for at least six weeks in a newspaper published in the county of the Surrogate. Code, § 278Y. Hearing upon the notice. At the time and place specified the Surrogate must hear the allegation and proofs of the creditors, and of all 320 Eeax, Actions. persons interested, respecting any demands which had not before been established or rejected before making the decree. Code, § 2788; Estate of Wilcox, 11 Olv. Pro. R. 115. The provisions of sections 2755 and 2756, relating to contesting and establishing debts, apply to any demand so presented. Code, I 2788. The unsold property directed to be sold. If it should appear that the proceeds of the property sold are insufficient to satisfy the costs, expenses and claims so proven, then the Surrogate must make an order as prescribed in section 2768, directing the execution of the decree as to the remainder of the property, or so much thereof as is necessary. Code, § 2789. Decree to pay. The Surrogate must make a decree fixing the sums to be paid and to whom, a certified copy of which must be served on the County Treasurer. Code, § 2792. Effect of an action to foreclose, etc. The proceedings taken under this title are not affected by any action or proceeding to sell the same property, except the Surrogate may, and in a proper case must stay the order to execute the decree as to a mortgage, lease or sale, until the determination of the action pending, or the further order of the Surrogate with respect thereto. Code, § 2797; Matter of Stillwell, 68 Hun, 406; If the Surrogate should order the sale to be made after- wards, the directions relating to the property sold relates to the proceeds. Code, § 2797; Stillwell v. Swarthout, 81 N. Y. 109. Appeals. An appeal to the Appellate Division of the Supreme Court lies from every decree of a Surrogate's Court, and every order effecting a substantial right made before or Decedent's Keal Property. 321 after a decree in a special proceeding by the Surrogate or by the Surrogate's Court. Code, §§ 2550-2570. What is reviewed. The appeal brings up for review each intermediate order which is specified in the notice of appeal and neces- sarily affected by the decree, and which has not already been reviewed by the Appellate Court on that order. Code, § 2571. The notice, what to contain. The notice must specify what is desired to be reviewed by the Appellate Court. Code, § 2571. Time to appeal. The appeal must be taken within thirty days after ser- vice of a notice of entry, by a party who has appeared, and within three months after entry of the decree, by a party who has not appeared. Code, § 2572. Parties to the appeal. Each party to the special proceedings and each person who has or claims to have an interest or right in the sub- ject matter which is directly affected, must be made parties on the appeal. Code, § 2573. Appeal from an order for a new jury trial. An appeal may be taken from an order made upon a new jury trial. Code, § 2549. Appeal from the decree. An appeal may be taken from the order establishing the validity of a debt. Code, § 2796. Supplementary decree. An appeal may be taJien from either of the supplemen- tary decrees by any person aggrieved thereby as from the 21 322 Beat, Actions. first decree, except it is not necessary or proper to make any creditor a party. Co(ie,§ 2791; Higbie v. Westlake, 14 N. Y. 281. Appeal as to the validity or amount of a debt. Upon an appeal where the only question that is raised is as to the validity or amount of a debt or judgment lien, and the property directed to be sold is in distinct parcels, the sale of any one or more of which will suffice to pay all the other debts and liens leaving enough unsold to satisfy the claim in question, the Appellate Court, upon motion and notice to all parties to the appeal may direct the Surrogate's Court to cause the decree to be executed to that part only which is necessary to satisfy those claims about which there is no question. Code, § 2769. Costs and expenses. The person disposing of the property is allowed all expenses and a reasonable sum for his own services not exceeding five dollars for each day actually and neces- sarily occupied by him in disposing of the property, and a further sum for the necessary services of counsel. Code, § 2563. Costs. Costs are in the discretion of the court. Matter of MatFews, 27 Hun, 254. No commissions. The allowances are in lieu of commissions. Code, § 2564. No costs allowed a creditor. A creditor cannot be allowed costs unless he should be the petitioner. Lang V. Olmstead, 3 Dem. 581; Cook v. Woodward, 5 Dem. 97. Fees of appraisers. In addition to his actual expenses an appraiser is entitled to five dollars per day actually and necessarily expended, proven by his affidavit. Code, § 2565. Deokdent's Eeal Property. 323 Fees of referees and witness. The fees of referees and witness are the same as in the Supreme Court. Code, § 2566. Surrogate's fees. The Surrogate is entitled to charge and receive ten cents a mile going to and returning from a place other than his oflBce, to take testimony, and ten cents a folio for a copy of any paper. Code, § 2567. Costs of appeal. Costs of appeal may be awarded by the Appellate Court as if from an order of the Surrogate's Court. Code, § 2549. Trial by referee or jury. In these proceedings questions arising over a disputed claim, insufficiency of assets, validity of liens, etc., the court may refer the questions to a referee or make an order directing a trial by a jury at a Circuit Court held within the county or in the County Court of the county. What the order should state. The order must state distinctly and plainly each ques- tion of fact to be tried, and it is the only authority neces- sary for the trial. Code, § 25J7. Discretionary. The power to direct a jury trial is discretionary. Mead v. Jenkins, 4 Eedf. 359. Review. The trial by a jury can only be reviewed upon a motion for a new trial made before the Surrogate to whom the verdict of the jury is certified by the clerk of the court. Code, § 2548. Dower, amount of. The widow's dower is one-third the gross amount, and not the amount less the charges and expenses of the sale. Hlgble V. Westlake, 14 N. Y. 281. 324 Eeal Actions. PRECEDENTS. Petition. (See text, page 312.) To the Surrogate's Court of the County of Fulton : The petition of respectfully shows : First. That your petitioner is the sole administratrix of the estate of , late of the town of , county of , N. Y., deceased. Second. That said died on the day of , 189 , intestate or (leaving a will which was duly admitted to probate by an order duly made by the Surrogate's Court of this county on the day of , 1895); that your peitioner was duly appointed adminis- tratrix of the estate of said , deceased, by an order duly made by the Surrogate's Court of this county on the day of , 1895. Third. That thereupon your petitioner duly qualified and by order of the said Surrogate's Court duly made on the day of , 189 , letters of administration were duly issued to your petitioner, who thereupon entered upon the discharge of her duties as such adminis- tratrix, which letters still remain in force. Fourth. That an inventory of the personal property was duly made and filed in the Surrogate's office of the county of , by said , as administra- trix, etc., on or about the day of , 1895, and that the personal estate of said decedent has been dis- covered to be insufficient for the payment of the debts and funeral expenses of said decedent. Forms, etc., for Decedent's Real Property. 325 Fifth. That on the day of , 1895, pur- suant to an order theretofore made by the said Surrogate, your petitioner commenced the publication of notice to creditors of said , deceased, to present their claims, and continued said publication agreeable to the statute, for the period of six months. Sixth. That the amount of personal property of said decedent which has come into the hands of your petitioner as such administratrix, is $ ; that your petitioner has expended of the said amount in the due course of administration of said estate, the sum of f , leav- ing in the hands of your petitioner as such administratrix on this day of , 1896, the sum of | , and the amount of the personal property now in the hands of your petitioner undisposed of will not exceed in value I Seventh. That the unpaid debts outstanding against the said , deceased, and the particulars thereof, with the name of each creditor or person claiming to be a creditor as far as the same can be ascertained by your petitioner, and the amount of the unpaid funeral expenses of the said decedent, and the name of each person to whom any sum is due by reason thereof, appear in the schedule hereto annexed marked schedule " A." That all of the debts against the said decedent not secured by mortgage or otherwise a lien or charge upon the real property of the said decedent, and which now remains to be paid, so far as the same can be ascertained by your petitioner, and as having been admitted by her upon due evidence, amount to $ , exclusive of interest, and that the claims against the said decedent which have been pre- sented to your petitioner as such administratrix, but which have not been admitted or allowed by her for the reason that the sums named therein or any part thereof, are not due to the parties presenting the claim, amount to $ S26 Real AoTIO^f^. Eighth. That the following described real property is, as your petitioner is informed and believes, all the real property within the State of New York of which said decedent died seized, or which otherwise belonged to him at the time of his death, or in which he had any interest, to wit: Parcel No. 1. (Description.) The value of said premises constituting parcel No. 1 is, in the judgment of your petitioner, $ . The said parcel is occupied by your petitioner. The said parcel No. 1 is subject to a lien, viz., a mort- gage for $ , made by decedent and his wife to , of , Fulton county, N. Y., dated , 1895. The whole principal sum secured by said mortgage became due and payable on the day of , 1895. The interest on said mortgage has been paid up until , 1896. Parcel No. 2. (Description.) The value of said premises constituting parcel No. 2 is, in the judgment of your petitioner, $ Said parcel No. 2 is not subject to any charge or lien, and that said parcel was not specifically devised, except a part and parcel thereof, described as follows: The said parcel of land so devised was, at the time of the death of said decedent, occupied by , to whom said parcel was devised, and has remained in her possession ever since, but has not been sold by her as your petitioner is informed and believes. The value of the parcel specifically devised is, in the judgment of your petitioner, | In the judgment of your petitioner that portion of par- cel No. 2 above described, as specifically devised to , will be required to be sold, together with all the real estate herein described, for the payment of the debts of the said decedent. Parcel No. 3. (Description.) FOEMS, ETC., FOR DeOEDENt'S JElEAL PROPERTY. 3^7 Said parcel No. 3 is not subject to any charge or lien, and that said parcel was not specifically devised. The value of said premises constituting parcel No. 3 is, in the judgment of your petitioner, $ Parcel No. 4. (Description.) The said parcel of land No. 4 was sold by the said in his lifetime, to , who holds a contract from said decedent for the purchase of said premises, for the sum of I , and there has been paid thereon the sum of $ , and upon the payment of the balance of the said purchase price will be entitled to a deed of the said premises. And your petitioner is informed that the said is ready to pay the balance due on said contract, and take the deed provided for in said contract, and your petitioner asks leave of the court to convey according to the terms of said contract upon receiving the balance due for the purchase price. Ninth. Each of the parcels of land hereinbefore described is improved and cultivated, except parcels numbers Tenth. All of the land of which the said testator died seized or possessed is subject to the dower of , widow of said decedent, your petitioner, who is willing to join in a conveyance of said property upon receiving a sum of money equal to the value of her dower in said premises, calculated on the annuity table. Eleventh. The names of the wife and of the heirs and devisees of thie said decedent, and of every other person claiming under them, or either of them, and their resi- dences, are as follows : (Put in names.) Twelfth. That no previous application has been made for a decree authorizing the disposition of the real prop- erty of said decedent for the payment of his debts or fun- 328 Reai, AcTIO^fg. eral expenses, and that three years have not elapsed since letters of administration have been granted your petitioner. Wherefore, your petitioner prays that a decree be made directing the sale of the said real property of said dece- dent, or so much thereof as may be necessary for the pay- ment of his debts, and that all parties interested therein may be cited to show cause, if any there be, why such a decree should not be made. Petitioner. State of New Yokk, , ss. Ccnmty of , being duly sworn, says that she is the petitioner named in the foregoing petition by her sub- scriber, and that she has heard the same read, knows the contents thereof, and that the same is true of her own knowledge except as to those matters therein stated to be alleged on information and belief, and that as to those matters she believes it to be true. Subscribed and sworn to before me this day of , 189 . Notary Public. Schedule "A." Petitioner. Forms, etc., for 1>ecedent's Eeal Property. 329 Order for Citation. (See text, page 312.) At a term of the Surrogate's Court held in and for the county of , at the Surrogate's office in the village of , on the day of , 189 . Present — Hon. , Surrogate. In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Real Estate of Said De- ceased for the Payment of His Debts and Funeral Expenses. On reading and filing the petition of , adminis- tratrix aforesaid, verified the day of , 189 , and presented this day of , 189 , praying for leave to mortgage, lease or sell the real property of said decedent for the payment of his debts and funeral expenses, and it appearing to the Surrogate that said peti- tion has been presented within three years since letters of administration on the estate of said decedent were granted; and the Surrogate being satisfied by the said petition, and by due inquiry by him made, that all the facts specified in section 2752 of the Code of Civil Pro- cedure, have been ascertained, and are stated in said peti- tion; and it appearing to the Surrogate in the matter aforesaid, that the debts and funeral expenses of said decedent cannot be paid without resorting to the real property of said decedent. Now, on motion of Clarence W. Smith, attorney for said petitioner, it is Ordered, That a citation issue out of this court upon said petition requiring (here insert the names of the heirs 330 Real Actions. and devisees of decedent) to appear before said Surrogate on tlie day of , 189 , at o'clock noon, then and there to show cause why authority should not be given to the said administratrix to mortgage, lease or sell the said real property of the said decedent to pay his debts and funeral expenses. And it further appearing to the court that the follow- ing named creditors have presented their claims to the administratrix, whose names are as follows, to wit (insert names of creditors), it is, therefore. Ordered, That said above-named creditors shall also be cited to appear upon said day and date to prove their said debt or lien against the said decedent. Surrogate. Citation. (See text, page 312.) The People of the State of New York to (names of all the heirs and devisees), and to (names of all creditors who have presented claims, and all other creditors) : You and each of you are hereby cited and required per- sonally to appear in the Surrogate's Court before our Sur- rogate of the county of , at his office in the of , on the day of , 189 , at o'clock in the noon of that day, then and there to show cause, if any there be, why the property of should not be sold for the payment of decedent's debts and funeral expenses, and for the establishment of any claim or claims against the estate of said , deceased. If any of the persons interested be under the age of twenty-one years they are required to appear by their guardian, if they have one, or if they have none that they appear and apply for one to be appointed, or in event of their neglect Forms, etc., for DecedJent's Eeal Property. 331 or failure to do so, a guardian will be appointed by the Surrogate to represent and act for them in the proceeding. In testimony whereof, we have caused the seal of office of said Surrogate to be hereunto affixed. Witness, Hon. , Surrogate of our [L. S.] said county, at , the day of , in the year of our Lord one thousand eight hundred and ninety-six. Surrogate. Order Appointing; Commissioners. (See t6xt, page 314.) At a term of the Surrogate's Court, held in and for the county of , at the Surrogate's office in the village of , on the day of , 189 . Present — Hon. , Surrogate. - In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Real Estate of Said De- ceased for the Payment of His Debts and Funeral Expenses. It appearing to the court that on the day of , 189 , one , as administratrix of the estate of , having duly presented to this court a petition in writing asking for the sale of the property of , deceased, for the payment of his debts and funeral expenses. And it appearing to the court that the proceedings have been taken in conformity to the section of the Code relat- 332 Seai. ActiONS. ing to the sale of decedent's real property to pay debts or liens or both, for which said sale is demanded, are the debts of the decedent, and are just and reasonable charges for his funeral expenses existing at his death, and are past due, and are not secured by a mortgage or expressly charged by will upon the decedent's real prop- erty or interest in real property, and that the property desired to be disposed of is not devised expressly charged with the payment of his debts, and that all personal prop- erty which could have been applied to the payment of decedent's debts and funeral expenses has been so applied, and that it is insufficient for the payment of dece- dent's debts as established by the decree. It is, therefore. Ordered, That , of , and , of , and , of , county of , State of New York, be and are hereby appointed commissioners to examine and appraise each parcel of the real estate of the decedent, and ascertain its real value and its market value, and report the same, and ascertain if money can be raised on the real property either by lease or mortgage on said property, or if suflft- cient moneys cannot be raised by mortgage or lease, to pay said debts as aforesaid; giving a description of said real estate, and describe each parcel and state the value thereof, and its rental value, and that they do make their report duly signed and verified according to the statute as provided, and file the same in this court. Surrogate. Forms, etc., for Decedent's Keax, Property. 333 Report of Commissioners. (See text, page 314.) Surrogate's Court — County of In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Real Estate of Said De- ceased for the Payment of His Debts and Funeral Expenses. To the Surrogate's Court: We, the undersigned commissioners, duly appointed by an order of the Surrogate's Court of the county of , do hereby make and file our report of our pro- ceedings had and made under said order: First. Having duly taken oath as prescribed by the statute, we proceeded to inquire into the real estate owned by decedent in his lifetime and we do hereby report that in our opinion the real value of parcel No. 1, hereinafter described, is of $ . (Description.) And that the rental value is $ , and is now occupied by of , and used for farming purposes. (And so continue with each parcel.) Second. That in our opinion said property cannot be leased either in parcels or as a whole for suflBlcient money to pay the indebtedness of said decedent, or any reason- able part thereof. Third. In our opinion it cannot be mortgaged for to exceed f , and that it would not be advisable to mortgage the same for said amount for reasons that (here state reasons). All of which is respectfully submitted. Dated this day of ,189 . (Verification.) Commissioners. 334 Real Actions. Order to Sell. (See text, page 315.) At a term of the Surrogate's Court, held in and for the county of , at the Surrogate's oflce in the village of , on the day of , 1897. Present — Hon. , Surrogate. In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Real Estate of Said De- ceased for the Payment of His Debts and Funeral Expenses. , of , county, N. Y., the administratrix of , deceased, late of , county, N. Y., having heretofore and within three years after the issue of letters upon said estate, duly presented to the Surrogate's Court of the county of , her petition, on the day of , 1896, praying for a decree for the sale of the decedent's real property for the payment of his debts and funeral expenses, and the Sur- rogate having been duly satisfied, upon proper inquiry and evidence, that a proper case was made and duly presented, and having thereupon caused a citation to issue out of this court requiring (names of heirs and devisees) to appear before him, the said Surrogate, upon such application, on the day of , 189 , to show cause why such order should not be made, if any there should be; and on the day of , 189 , the petitioner appeared in person and by , her attorney, and filed' proof of the due service of the citation herein, upon each of the persons named in said citation, according to law; and it appearing that were infants, and that Forms, etc., for Decedent's Eeal, Property. 335 was duly appointed special guardian for said infants in this proceeding, to appear and look after their interests, who duly appeared in person and by , as attor- ney, for said infants ; and the said also appeared for , as her attorney; and it appearing to the satisfaction of the Surrogate that a large number of credi- tors having claims against the estate of the said deceased had not appeared, nor been cited to appear on said hear- ing upon the said application, the said Surrogate there- upon caused a citation to issue out of this court requiring the said persons claiming to be creditors of the said estate, viz. (creditors), to appear before him, the said Surrogate, upon such application, on the day of , 1897, at ten o'clock in the forenoon of that day, to establish any claim they might have against the said deceased in this proceeding, and the said hearing was thereupon duly adjourned, by consent of all parties appearing, to the said day of , 189 , and citation issued and returned with due proof of service thereof, on each of the persons and parties therein named, or their personal representatives, according to law; and all of the said per- sons and parties having duly appeared in person or by attorney, and the said infants appearing by their said special guardian, and the matter having been regularly called in court by the said Surrogate, and the said Surro- gate, having, upon the return of the citation as aforesaid, proceeded to hear the allegations and proofs of the parties, and the hearing having been duly adjourned from day to day, until the day of , 189 , and after due examination as aforesaid had, it having been established to the satisfaction of the said Surrogate: First. That the said petitioner has fully complied with the requisite provisions of the statutes concerning the dis- position of decedent's real property for the payment of debts and funeral expenses, and that the proceedings 336 Beai, Actions. herein have been in conformity with title 5 of chapter 18 of the Code of Civil Procedure. Second. That the following claims for the purpose of paying which this decree is made, are valid and subsisting debts against defendant's real property, and are all past due, and that the funeral expenses and all claims allowed herein are justly due and owing, to wit: Creditors. Eesidence. Amount. Third. That the claims above allowed amount in the aggregate to | , and that none of them are secured by any judgment or mortgage which is a lien upon the decedent's real property nor expressly charged by said decedent's will upon his real property or upon any interest in real property. Fourth. That the said , the said adminis- tratrix, has proceeded with reasonable diligence in con- verting the personal property into money, and applying it to the payment of the debts and funeral expenses of said decedent, and that it is insufficient for the payment of the same as established by this decree ; and said Surro- gate, having thereupon duly inquired by the appointment of commissioners whether sufficient money can be raised advantageously to the persons interested in said real property by a lease or mortgage thereof; and having ascer- tained that sufficient money cannot be so raised advan- tageously as aforesaid, as shown by the report of said commissioners. Now, on motion of , attorney for said , administratrix, it is Ordered, adjudged and decreed: First. That the claims of (names of all claims), herein- before named, in the amounts hereinabove respectively Forms, etc., tok Decedent's Eeal Property. 337 stated, are valid and subsisting claims against said dece- dent's estate, and that the claims of (names of claims rejected) hereinbefore named, are not valid subsisting claims against decedent's estate, and are hereby dis- allowed. Second. That for the purpose of paying the debts hereinbefore established, a sale of the following described real property, of which said decedent died seized, or so much thereof as may be necessary to pay such debts, be made by , the said administratrix, upon her executing and filing with the Surrogate df this county the bond prescribed by law, in the penalty of f , with two or more sureties, or in case of her failure to do so, by a freeholder to be appointed by the Surrogate as pre- scribed by law. Parcel No. 1. (Description.) And it appearing to said Surrogate that said parcel No. i is subject to a contract in writing between and , dated , 189 , for the sale thereof, for the sum of $ , to the said , on which there has been paid the sum of $ , and interest to the day of , 189 , and it appearing that the said is ready to pay the balance unpaid on said contract. It is further Ordered, That the said administratrix make, execute and deliver to the said , a deed of said premises pursuant to the said contract, upon his paying the balance of said purchase price, and in case the said fails or refuses to pay the balance of said purchase price under said contract before the day of sale of the real estate, as hereafter provided in this proceeding, then all the right, title and interest of said decedent in said parcel No. 4 shall be sold separately, and first in order of the sale of the several parcels of land herein directed to be sold, 22 338 Eeax, Actions. and subject to the rights of the said under said contract. And it appearing to the Surrogate that a sale of a suffi- cient part of said real property to pay the debts of said decedent, to which it is justly applicable, would be to the best interests of all said parties interested therein; it is further Ordered, That the said parcels of land herein described be sold in the following order: (Give the order.) And it is further Ordered, That the person making such sale shall pro- ceed with all convenient speed in executing this decree, and make due report to this court. Surrogate. ) Bond of Administrator. (See text, page 316.) Know all men by these presents: That we, , principal, of county, N. Y., and , sureties, of , county, N. Y., are held and firmly bound unto the people of the State of New York in the sum of I , lawful money of the United States of America, to be paid to the said people, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals this day of , in the year one thousand and ninety Whereas, the above bounden, , the adminis- tratrix of , deceased, lately applied to the Sur- rogate's Court of the county of , for authority to Forms, etc., fob Decedent's Ebal Property. 339 dispose of as much of the real property of the said , deceased, as shall be necessary to pay his debts, etc. And Whereas, such proceedings in due form of law have been thereupon had that the said Surrogate has decreed a sale of so much of the real property whereof the said decedent died seized, as shall be sufficient to pay the debts of the said decedent, which the Surrogate has adjudged valid and subsisting pursuant to the statute. Now, the condition of this obligation is such that if the said shall faithfully perform the duties imposed upon her by said decree, and shall pay into the said Sur- rogate's Court within twenty days after the receipt thereof by her all moneys arising from such sale, and shall deliver to the said Surrogate within the same time all the securities taken thereupon, and shall account for all moneys received by her whenever she is required to do so, by a court of competent jurisdiction, then this obligation to be void, otherwise to remain in full force and effect. [Seal.] [Seal.] [Seal.] State op New Yoke, | ' ( ss. : County of , ) On this day of , 189 , before me, the undersigned, personally appeared , to me known to be the same persons described in and who executed the foregoing instrument bond, and severally acknowledged that they executed the same. (Justification.) 340 Kbax, Actions. Order to Execute the Decree. (See text, page 317.) At a term of the Surrogate's Court, held in and for the county of , at the Surrogate's office in the village of , on the day of , 189 . Present — Hon. Thomas McGann, Surrogate. In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Keal Estate of Said De- ceased for the Payment of His Debts, etc. A decree having heretofore been made herein by the said Surrogate's Court, entered the day of , 189 , upon a petition duly presented, and the due citation of the proper persons authorizing the sale of certain real property of said decedent in said decree described, for the payment of his debts, and , the administratrix therein named, having duly given and on the day of , 189 , filed in the office of the said Surrogate, the bond required by law and by said decree, with the requisite justification of sureties, which said bond is hereby approved by the Surrogate. Now, on motion of , attorney for said admin- istratrix, it is Ordered, That said proceed to execute the said decree with respect to all the real property therein named. Surrogate. Poems, etc., for Decedent's IReal JPeoperty. 341 Notice of Sale. (See text, page 317.) Surrogate's Court — County. In the Matter of the Application of ] , as Administratrix, etc.. of , Deceased, to Sell Real Estate of Said Deceased for the Payment of his Debts, etc. In pursuance of an order of the Surrogate's Court of the County of Hamilton, duly made and entered on the day of , 189 , the undersigned, , as admin- istra , etc., duly authorized by said order to sell cer- tain real property belonging to the estate of , deceased, will sell at public sale to the highest bidder, at the in the village of , county, N. Y., at o'clock in the afternoon on the day of , 189 , the following described real estate, to wit: (Description.) Ten per cent of the amount bid must be paid at the time of the sale, and the balance of the purchase price bid must be paid at the delivery of the deed. ,as Administra 342 RBAii AOWONS. AfS.davit of Posting. (See text, page 317.) Stjerogate's Court — County of In the Matter of the Disposition of the Real Estate of , De- ceased, for the Payment of His Debts, etc. State of New Yoek, [ Cownty of , ( of the town of , N. Y., being duly sworn, says that on the day of , 189 , and at least eighty-four days before the day of sale mentioned in the annexed printed notice, he affixed a true copy of said notice of sale of real property in at least three con- spicuous places in the town of , county of , State of New York, where said property, directed to be sold, is situated, upon the following places, to wit: On the bulletin board of the town clerk's office, on the store of , and on the front of the office. Subscribed and sworn to before me this day of , 189 . Notary Public. Forms, etc., fob Decedent's Seal Property. 34S Affidavit of Mailing. (See text, page 317.) In the Matter of the Sale of Real Estate of , Deceased. State of New Yoke, ( . County of , ' , being duly sworn, says that he is the attorney for the petitioner in the above-entitled matter, and resides at , county. New York, where he has an office for the regular transaction of business. That on the day of , 189 , he deposited in the post-office at , New York, copies of the notice of sale in the above-entitled matter, which is hereto annexed, one of each inclosed in a securely closed postpaid wrapper, addressed to each of the following-named per- sons, firms and creditors in the above-entitled matter, at the address written after the name of each respectively, that being the last known place of residence or post-office address of each, as deponent is informed and believes, between which said places and said city of , New York, there then was and now is a regular communi- cation by mail, as deponent verily believes. (Names and residences.) Subscribed and sworn to before me this day of , 189 . Notary Public. 344 Eeal Actions. Terms of Sale. (See text, page 317.) In the Matter of the Sale of the Real Estate of , Deceased, for the Payment of His Debts. Premises described in the annexed notice of sale as parcel No. , will be sold under the direction of , administratrix, etc., upon the following terms : First. Ten per cent of the purchase money of said described property will be required to be paid to the said at the time and place of sale, for which her receipt will be given. Second. The balance of said purchase money will be required to be, paid to the said at her residence in , N. Y., at the time when the deed for said described property is ready for delivery. Third. If the said purchaser neglects to receive his said deed when notified that the same is ready for deliv- ery, he will be charged with interest thereafter on the whole amount of his purchase from said time. Fourth. All taxes, assessments and other incum- brances which at the time of sale are liens and incum- brances upon said premises, will be allowed by the said administratrix out of the purchase money, provided the purchaser shall, previous to the delivery of the deed, pro- duce to the administratrix proof of such liens and dupli- cate receipts for the payment thereof. Fifth. The purchaser of said premises or any portion thereof will, at the time and place of sale, sign a memo- randum of his purchase. Sixth. The bidding will be kept open after the prop- erty is struck down, and in case any purchaser shall fail Poems, etc., for Decedent's Real Property. 345 to comply with any of the above conditions of sale, the premises so struck down to him will again be put up for sale under these same terms of sale without application to the court, unless the administratrix's attorney shall elect to make such application, and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale and for which they may be purchased at the resale; and also any costs and expenses occurring on such resale. Dated , N. Y., this day of ,189 . Mbmoranbum of Sale. I, , have this day of , 189 , pur- chased the premises described in the annexed printed advertisement of sale as parcel No. , for the sum of $ , and hereby promise and agree to comply with the terms and conditions of the sale of said premises as above mentioned and set forth, after confirmation of this sale by the Surrogate's Court. Dated , 189 . ,189 . Received from , the sum of $ , being ten per cent of the amount paid by him for property sold by me under the order of the court, in the above-entitled proceeding. Administratrix. 346 Seai. Actions. Beport of Sale. (See text, page 318.) Surrogate's Coukt — County of In the Matter of the Disposition of the Real Estate of , De- ceased, for the Payment of His Debts, etc. To Hon. , Surrogate of the County of : I, , administra with the will annexed, of the estate of , late of , deceased, report and return my proceedings under the decree of sale of the real estate of the said deceased, granted by the Sur- rogate of county on the day of Feb- ruary, 1897, as follows: I caused a notice that the said real estate would be sold at public auction at the , in the town of , on the day of , 189 , at o'clock in the afternoon of that day, to be posted for six weeks previous to the day appointed for the said sale, in more than three of the most public places in the town of , in which all of the said real estate is situated, and the same notice to be published for six weeks succes- sively previous to the day appointed for the said sale, in the newspaper entitled , printed in the town of , a copy of which said notice, with the proof of such posting and publication thereof, is hereunto annexed. That at o'clock in the afternoon on the said day of , 189 , at the , in the town of , wherein the premises ordered to be sold are situated, I sold at public auction the whole of the real estate men- tioned and described in said order of sale, as follows; and Forms, etc., for Decedent's Real Pbopeety, 347 which said real estate is mentioned and described in said order of sale as follows: (Description.) And I do further report that the premises described herein above as first, and also described in the said decree for the disposal of real estate, was sold to for the sum of | , subject to the approval of this court, he being the highest bidder therefor, and that being the highest sum bid therefor, which said sum is a fair and adequate consideration for said premises, as I verily believed, which said parcel is described as follows: (Description.) (Continue as above with each parcel sold.) State of County of , , being duly sworn, says that he has read the foregoing report and knows the contents thereof, and that the same is true of her own knowledge except those matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. Subscribed and sworn to before me this day of , 189 . Notary Public. 348 Beal Actions. Order of U'otice of Confirmation. (See text, page 318.) Surrogate's Court — County. At a term of the Surrogate's Court held in and for the county of , at the oflfice of Hon. , in the town of , N. Y., on the day of , 189 . Present — Hon. , Surrogate. In the Matter of the Disposition of the Real Estate of , De- ceased, for the Payment of His Debts, etc. It appearing to the court that , administra with the will annexed, of , deceased, has this day filed his report of sale of the real property heretofore by this court ordered to be sold by an order dated the 5th day of , 189 , whereby by said return it appears to the court that the said did in all things sell said real estate as by said order directed, at the place and times as directed, after giving due notice of said sale; and it further appearing to the court that said administra has brought into court the proceeds obtained by him on such sale, and asks an order confirming said sale. Now, on motion of , attorney for said administra , it is Ordered, That notice be given to all persons interested therein, as appears by said decree of sale, to be and appear before the court on the day of , 189 , to show cause, if any there be, why an order confirming said sale in all things should not be made, and authorizing said administra to make, execute and deliver conveyances for the full and complete title of the premises so sold by him. It is further Forms, etc., for Decedent's Real Property. 349 Ordered, That a service of said notice shall be made upon each of said persons entitled to share in the proceeds of said sale, by depositing the same in a securely closed postpaid wrapper in the post-office at , N. Y., directed to each one, at his last known place of residence, on or before the day of , 189 , which said service shall be sufficient for the purposes of this order. Surrogate. Notice to Show Cause. (See text, page 318.) Surrogate's Court. In. the Matter of the Disposition of the Real Estate of , De- ceased, for the Payment of His Debts, etc. Whereas, , as administra of , deceased, did on the day of , 189 , file his report of sale of the real property described in an order or decree for the disposal of the real estate of said deceased, made by the Surrogate's Court of county, dated the day of , 189 , whereby he was directed to sell the said real estate; and said report of sale recites that the said administra has sold all of the real estate belonging to the said decedent at the time of his death, as in said order directed. You are hereby notified and required to be and appear before the Surrogate's Court of the county of , at the office of the Surrogate in the city of , N. Y., on the day of , 189 , at o'clock in the noon, to show cause, if any there be, why an order con- firming said sale in all things, and authorizing the said 350 Eeal Actions. administra to make, execute and deliver conveyances for the full and complete title of the premises so sold by him should not be made. Dated day of , 189 . Attorney for said Administrator. Office and post-office address, (Name of creditor.) Affidavit of Hailing UTotice. (See text, page 318.) In the Matter of the Sale of the Eeal Estate of , Deceaised. State of New York, ) County of Fulton, ! , being duly sworn, says that he is the attorney for the petitioner in the above-entitled matter, and resides at , N. Y., where he has an office for the regular transaction of business. That on the day of , 189 , he deposited in the post-office at , N. Y., copies of the notice of confirmation of sale in the above-entitled matter, which is hereto annexed, one of each in a securely closed post- paid wrapper, addressed to each of the following named persons, firms and creditors in the above-entitled matter, at the address written after the name of each respectively, that being the last known place of residence or post-office address of each, as deponent is informed and believes, between each of which places and said city of , N, Y., there then was and now is a regular communication by mail, as deponent verily believes. (Names and residences of each.) Forms, etc., foe. Decedent's Real Property. 351 Subscribed and sworn to before me this day of , 189 . Notary Public. (Attach copy of notice.) Order Confirming Sale. (See text, page 319.) At a term of the Surrogate's Court held in and for the county of , at the Surrogate's office in the village of , on the day of , 189 . Present — Hon. , Surrogate. In the Matter of the Application of , as Adminlstra-tor, etc., of , Deceased, for Leave to Sell Real Estate of Said Deceased, for the Payment of His Debts and Funeral Expenses. A decree having been duly made by the Surrogate's Court of the county of , on the day of , 189 , authorizing the said , administrator with the will annexed, of , deceased, to dispose of the said decedent's real property mentioned and described in the said decree, to raise money to pay the debts therein mentioned and established, and after a bond having been duly given by said , and an order for the execution of said decree having been duly made by said Surrogate's Court on the day of , 189 and said having made and filed his report of the sale made pursuant to said decree, showing that after posting and publishing due notice of the time and place 352 Ebal Actions. of holding the said sale, according to law, he did, on the day of , 189 , at o'clock in the noon at the time mentioned in said notice, at the , in the city of , N. Y., the place mentioned in said notice, sell at public auction all the right, title and interest of , deceased, in the following-described premises, being parcel No. 1 of the property mentioned and described in said order, to wit (description), together with all and singular the tenements, hereditaments and appurtenances to the said premises belonging or in any wise appertaining, to , for the sum of | , he being the highest bidder therefor, and that being the highest sum bid for said parcel. Also (continue as to each parcel). All of which said parcels so sold to and , amounts in the aggregate to the sum of I And the said having this day appeared in person and by , his attorney, and due proof of service of notice of this motion on (names of all creditors), agreeable to the order herein named, on the day of , 189 , having been now read and filed, and having appeared in person, and no one appearing to oppose the confirmation of said sale (or appear- ing in opposition thereto), and the said Surrogate having duly inquired into the proceedings, and it appearing by proof satisfactory to the said Surrogate that the proceed- ings were fair, and that the acts were done which are required by law to be done, after the said order directing the execution of the decree, to authorize the said Surro- gate to make this order of confirmation, and that said sale was legally made and fairly conducted, and that the sums bid for the said lots and parcels were not dispropor- tionate to their value respectively. Now, on motion of , attorney for said , administrator, Forms, etc., tor Decedent's Real Property. 353 It is ordered, First. That the said sale of the said several parcels of said real property and interest in real property, so as aforesaid made by said , and his report thereof, and everything therein contained, be and the same is hereby ratified and confirmed. Second. That the said , as administrator aforesaid, execute and deliver the proper conveyances of the said several lots and parcels to the purchasers thereof respectively, at such sale, upon compliance upon the part of such purchasers respectively, with the terms and con- ditions upon which such sales were made. Surrogate of County. Order to Pay Moneys to the County Treasurer. (See text, page 320.) At a term of the Surrogate's Court, held in and for the county of , at the Surrogate's ofiSce in the village of , N. Y., on the day of , 189 . Present — Hon. , Surrogate. In the Matter of the Distribution of the Proceeds of the Sale of the Real Estate of , Deceased. A decree having been duly made by the Surrogate's Court of county on the day of , 189 , confirming in all things the sale of the real estate of said , deceased, by , as adminis- trator, and also ordering and directing that the said , as such administrator, do make, execute and deliver to the purchasers therein named, proper convey- 23 354 Ebal Actions. ances conveying the right, title and interest of said in said property, and also on said day the said Surrogate's Court did make an order that the proceeds of said sale be divided among the creditors, according to law, at the Sur- rogate's office in the city of , on the day of , 1897, and that notice of the time and place of making such distribution be duly given according to law. Now, on motion of , attorney for said adminis- trator, it is Ordered, That the said moneys so received by said , as administrator, be brought into court and paid to the county treasurer of county, N. Y., to be by him paid out and distributed according to and under the directions of the said Surrogate's Court of county. Surrogate. Order for Notice of Distribution. (See text, page 319.) At a term of the Surrogate's Court, held in and for the county of , at the Surrogate's office in the town of , N. Y., on the day of , 189 . Present — Hon. , Surrogate. In the Matter of the Distribution of the Proceeds of the Sale of the Real Estate of , Deceased. , administrator, having brought into the office of the Surrogate of the county of , the moneys arising from the real estate of the said , deceased lately made by him upon the order of the Surrogate, Forms, etc., for Decedent's Real Property. 355 It is ordered. That such proceeds be divided among the creditors, according to law, at the Surrogate's office in the city of , on the day of , 189 , at o'clock in the noon, and that notice of the time and place of making such distribution be published for six weeks immediately preceding said day, in the newspaper entitled , printed in the county of (same county of Surrogate). Surrogate. Notice of Distribution. (See text, page 319.) Surrogate's Court. In the Matter of the Distribution of the Proceeds of the Sale of the Real Estate of , Deceased. Notice is hereby given that the balance remaining of the proceeds of the sale of the real estate of , late of , deceased, lately made under an order of the Surrogate of the county of , by , administratrix, with the will annexed, will be distributed by the said Surrogate among the creditors of the said deceased in proportion to their respective debts, accord- ing to law, at the Surrogate's office in the town of , on the day of , 189 , at o'clock in the noon of that day. Dated , 189 . Surrogate. 356 Keax, Actions. Consent to Accept Gross Sum in I>ieu of Sower. (See text, page 319.) Whereas, , administratrix, with the will annexed, has recently sold the real estate whereof the said died seized or had an interest therein, upon an order of the Surrogate of the county of , authorizing her to sell the same for the payment of the debts of the said deceased, and has brought the moneys arising from such sale into the office of the said Surrogate for the purpose of distributing. Now, these presents witness, That I, , widow of the said , deceased, do hereby consent to accept in lieu of my dower such sum in gross as shall be ascertained to be equal to the value of my right of dower of the gross proceeds of said property according to the principles applicable to life annuities. In testimony whereof, I have hereunto set my hand and seal this day of , 189 . State of Nkw Yokk, ) Covmiy of , ' This is to certify that on this day of , 189 , , the person named in the foregoing instrument, personally appeared before me and she acknowledged that she executed the same. Notary Public. Forms, etc., for Decedent's Real Property. 357 Final Order of Distribution. (See text, page 320.) At a term of the Surrogate's Court held in and for the county of , at the Surrogate's office in the village of , N. Y., on the day of , 189 . Present — Hon. , , Surrogate. In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Real Estate of the Said Deceased, for the Payment of His Debts and Funeral Expenses. Notice that a distribution of the proceeds arising from the sale of the real estate in this matter would be made on the day of , 189 , having been duly pub- lished, and the said proceeds having been paid into Sur- rogate's Court, amounting to $5,740, it is Ordered, That the County Treasurer of county retain in his hands the sum of $57.40 as and for his commissions for receiving and disbursing the said funds in this proceeding. Second. It is further ordered, that the said County Treasurer pay to , administratrix, etc., and the petitioner in this proceeding, the sum of $ , which sum is hereby fixed, determined and allowed as and for her reasonable charge, expense and disbursements in this proceeding. Third. It is further ordered, that out of the balance of the moneys, after paying said charges, expenses and dis- bursements of this proceeding, there be paid to , widow of the said , deceased, the sum of $ 358 Kbal, Actions. which sums he has consented, by a paper duly executed and authenticated by her, to accept in lieu of her dower right in the premises so sold. Fourth. It is further ordered, that out of the remainder of said sum there be paid to , Esq., the attorney for the petitioner, the sum of $ costs, which sum is hereby awarded and allowed to the peti- tioner as a reasonable compensation for his services and disbursements as attorney of the petitioner in this proceeding. Fifth. It is further ordered, that out of the remainder of the said sum there be paid to , or to their attorney, , for them, the sum of f , which sum is hereby allowed as the unpaid balance of the fun- eral expenses of the decedent. Sixth. And it also appearing to the court upon this hearing for distribution in pursuance of said notice, and upon the hearing on the order of sale, that the following demands of the following-named persons have been and were established as valid and subsisting demands against the said , deceased, and are the only demands stablished, it is further Ordered, That the remainder of the money, to wit: The sum of | , be distributed among the creditors of the deceased, whose debts have been estab- lished as set forth in this order. That said persons' names are mentioned in the first column of the following list, and the amount at which each claim is established and allowed in the second column opposite each name, and the amount to which each is entitled and the sum which each shall be paid upon this distribution, this day ordered, in the third column opposite each name, as follows: (Insert names.) Seventh. It is further ordered, that the bond of the said , and the sureties thereon, given by her Forms, etc., for IDecedent^s JReal Property. 359 in the above-entitled matter, be and they are hereby dis- charged, and that she be and hereby is discharged from all further liability in and on account of this proceeding. Widow's Release to Treasurer. Surrogate's Court. In the Matter of the Application of , as Administratrix, etc., of , Deceased, for Leave to Sell Real Estate of the Said Deceased, for the Payment of His Debts and Funeral Expenses. Know all men by these presents: That I, , widow of , deceased, of , county, N. Y., do hereby acknowledge the receipt of the sum of | , to me in hand paid by , County Treasurer of county, being in full for the amount directed to be paid to me in lieu of my dower right in the premises sold in the above-entitled proceeding, by the decree and order made by the Surro- gate's Court of county, on the day of , 189 , and I hereby release and discharge said County Treasurer of and from all claims and demands upon and on account of the provisions of said decree and order so allowing, awarding and directing to be paid to me the said sum of |879.50, as and for my dower in the premises so sold in the above-entitled proceeding. [Seal.] 360 EEAii Actions. [ ss. : State of Nbw Yoek, Cowni/y of , On this day of , 189 , before me per- sonally came , to me known and known to me to be the individual described in and who executed the foregoing receipt and release, and she acknowledged that she executed the same. Notary Public. Action by Creditor, etc. 361 CHAPTER IX. ACTION BY A CREDITOR AGAINST HEIRS AND DEVISEES AFFECTING DECEDENT'S REAL PROPERTY. An action may be maintained by a creditor of decedent against an heir or devisee upon a simple or special con- tract, or by a specialty, the extent of the estate, interest and right in the real property which descended to them from, or was effectually devised to them by the decedent. Code, § 1843; Armstrong et al. v. McKelvey, 104 N. Y. 179; Deyo v. Morse, 144 N. Y. 216; Fink v. Berg, 50 Hun, 213; Hay ward v. McDonald, 7 Civ. Pro. 100. When action can be maintained. Said action cannot be maintained except in one of the following cases : First. Where three years have elapsed since the death of the decedent, and his letters testamentary or of admin- istration have been granted upon his estate within the State. Second. Where three years have elapsed since letters testamentary or of administration have been granted within the State. Code, § 1844; Cunningham v. Parker et al., 146 N. Y. 29; Hamilton v. Smith, 46 Hun, 651; Mortimer v. Cham- bers, 43 N. Y. St. R. 365. Where action is commenced pending application to sell. An action begun while proceedings are pending on a petition seasonably presented for sale of decedent's real estate to pay debts, all proceedings in said action subse- quent to the complaint must be stayed by the court until the petition is disposed of or the plaintiff may elect to discontinue. Code, § 1845. When dismissed. If a decree under the petition to sell is granted, and the property is disposed of in pursuance thereof, the action 362 Eeal AoTIO^fg. must be dismissed unless ttie plaintiff has alleged in his complaint or does allege in a supplementary complaint that other property belonging to decedent descended to said heirs or was devised than that included in the decree of sale, and if the plaintiff elect to proceed as to that prop- erty he is entitled to a preference in payment out of such property, but he cannot share in the distribution of the money arising from the sale under the decree, and such property is in no way charged with his judgment. Code, § 1845; Raynor v. Gordon, 23 Hun, 264. The action mnst be joint. This action must be brought jointly against all the heirs or all the devisees to whom the property was devised. Code, § 1846; Rogers v. Patterson, 79 Hun, 483; Mor- timer V. Chambers, 63 Hun, 335; Hauselt et al. r. Patterson, 124 N. Y. 349; Wood v. Wood, 26 Barb. 356-362. Property which descended to the heirs first exhausted. If the real estate which passed to the heirs is insuffi- cient, the devisees are properly joined, but the judgment must direct that that which descended to the heirs be first exhausted. Rockwell V. Geery, 4 Hun, 606. Counterclaim. A counterclaim to be interposed must be in favor of all defendants jointly. Mortimer v. Chambers, 63 Hun, 335. Each is liable respectively to the extent of the estate which descended to them. Hayward v. McDonald, 7 Civ. Pro. R. 100. Parties. Plaintiff. A creditor by contract, either a simple or by specialty, or any person having a claim against a decedent who died seized of real estate or an interest in real property, may be party plaintiff. Code, § 1843. Action by Creditor, etc. 363 Defendants. Any heir of the decedent, or any person to whom dece- dent devised real property, or any person by, through or whom any person acquired any interest in said real prop- erty after the filing of a lis pendens, being joint owners thereof, shall be defendants and liable to the extent of their interest therein. Code, §§ 1843 and 1846. Apportionment of recovery. Any sum recovered by plaintiff on account of his claim and his costs shall be apportioned among all the defend- ants in proportion to the value of the property descended to or devised to them. Code, I 1847; Fink v. Berg, 50 Hun, 211; Rogers v. Pat- terson, 79 Hun, 483. Bequisite to recovery against heirs. In an action against the heirs the plaintiff must show: First. That the decedent's assets over and above the expenses of administration and debts superior to plaint- iff's, were not sufficient to pay plaintiff's debt. Second. That plaintiff has been or will be unable with due diligence to collect his debt by proceedings in the proper Surrogate's Court, or by action against the execu- tor or administrator or surviving husband or wife or lega- tees and next of kin. Code, § 1848; Harris v. Clark, 3 N. Y. 93; Read v. Pat- terson, 134 N. Y. 128; Adams v. Fassett, 73 Hun, 430. Presumptive evidence. The executor's or administrator's account as rendered to and settled by the Surrogate, may be used as presump- tive evidence of any facts required to be shown by this section. Code, § 1848; Read v. Patterson, 134 N. Y. 128. When brought against the devisees. If the action is brought against the devisees, the plaint- iff must show in addition to that required in section 1848, either that the real estate which descended to the heirs was not suflflcient to pay his claim, or that he has been ^64 Rbaij Actions. unable or will be unable to collect his debt by action from the heirs. Code, § 1849; Stuart v. Kissam, 11 Barb. 271. Measure of recovery. Plaintiff can only recover in an action against the heirs that part which the assets are insufflcient to pay, or that he is unable to collect from the executor or administrator, or the surviving husband, or wife, or next of kin, or lega- tees, and of the devisees only for the residue which the real estate descended, or the amount of his recovery against the heirs is insufl&cient to satisfy. Code, § 1850; 61 N. Y. St. R. 279. Pakties. Plaintiff. Any person holding a claim against the decedent either upon a simple contract or a special contract. Code, § 1843; Armstrong v. McKelvey, 104 N. Y. 179; Mortgagee. A mortgagee may maintain action to recover on a judg- ment for deficiency. Lockwood V. Fawcett, 17 Hun, 146. Creditors of decedent. Only creditors of the decedent can maintain the action, a claim against the executor or administrator, as such, cannot be recovered against the heirs or devisees. Hayward v. McDonald, 7 Civ. Pro. R. 100. Defendants. The heirs of an intestate and the heirs and devisees of a testator are liable to the extent of the estate, interest in and to the real property, which descended to or was effect- ually devised to them by the decedent. Code, § 1843; Clift v. Moses, 116 N. Y. 144. The personal representatives cannot be joined. The heirs must all be sued jointly and if the real estate which descended to them has been aliened the creditor, if he so elect, can charge them personally. Haywood v. McDonald, 7 Civ. Pro. R. 100. Action by Creditor, etc. 365 Limitation of the action. The Statute of Limitation does not run during tlie three years. Adams v. Fassett, 73 Hun, 430. Held, that the limitation of ten years applied in. Mortimer v. Chambers, 43 N. Y. St. R. 365. Infancy. This action is not delayed by reason of the infancy of any of the parties. Except execution cannot be issued against the infant until one year after final judgment and judgment-roll filed. Code, § 1858. Liability of the heir or devisee. The liability of an heir or devisee is not affected for a debt of a testator by this proceeding, where the will expressly charges the debt upon the real property descended or devised or makes it payable by the heirs and devisee or out of the real property descended or devised before resorting to the personal property or to any other real property descended or devised. Code, § 1859. Action in more than one capacity. Where a person takes real property in more than one capacity he may be proceeded against in either, without plaintiff first exhausting his remedy in the other. Code, § 1860; Armstrong v. Wing, 10 Hun, 520. Pleadings. Complaint. The complaint must describe, with certainty, the real property descended or devised to the defendants and must specify the value. Code, § 1851. It should set forth all jurisdictional facts required in sections 1844 and 1845. Answer. May contain a general denial or set up any matter that would tend to defeat or lessen plaintiff's complaint. 366 Keal, Actions. Offset. A claim to be set off must be in favor of all the defend- ants jointly as the action is a joint action against all the devisees. Mortimer v. Chambers, 43 N. Y. St. R. 365. In an action by an assignee of a claim or judgment a debt due by the assignor to defendant testator cannot be offset. Armstrong v. McKelvey, 39 Hun, 213. No claim established. Defendants may plead that no claim was established or allovred by the executor. Eead v. Patterson, 45 N. Y. St. R. 793. Defense of prior or equal claims. Defendants may set up prior unsatisfied claims and that the value of the property received, devised or inherited by them does not exceed the amount of such valid prior demands. Code, § 1856; Hausett v. Patterson, 124 N. Y. 349. And if the defendant or a person belonging to this class has paid such demand such claim must be estimated and allovped. Code, § 1857. Costs. Plaintiff is entitled to recover costs and if any one of the defendants put in a defense he is liable for the vphole costs as there can be no apportionment. Fink V. Berg, 50 Hun, 211. Judgment., Judgment is entered as in other cases and must direct that it be first satisfied out of the real property of decedent that descended or w^as devised to defendants that has not been aliened by such defendants. Code, § 1852; Cunningham v. Parlser, 146 N. Y. 29; Hay- wood V. McDonald, 7 Civ. Pro. 100. Preference. Such judgment is preferred to one obtained against defendant for his own individual debt or demand. Code, § 1852. Action by Creditor, etc. 367 Bona fide purchaser. The title of a bona fide purchaser for value acquired before the filing of lis pendens or entry of judgment, is not affected. Code, § 1853; Rogers v. Patterson, 87 Hun, 219; Cun- ningham V. Parker, 146 N. Y. 29. When the land has been sold. If it appears that the defendant has aliened the land before lis pendens was filed or action commenced, the plaintiff may, at his election, take judgment against the defendant for the value of the property so aliened, or so much thereof as may be necessary as in an action for the defendant's own debt. Code, § 1854; Rogers v. Patterson, 79 Hun, 486; Hausett V. Patterson, 124 N. Y. 349. Preferences. In the proceeding to collect a debt due by a decedent against the surviving husband or wife, next of kin, lega- tees, heirs or devisees, the same preferences must be given to the payment of such debts as are provided in section 2719, Code, in relation to payment of debts by executors or administrators. Code, § 1855. The commencement of an action does not give preference. Code, § 1855. 368 Eeal Actions. PRECEDENTS. Lis Pendens. (See text, page 367.) WILLIAM R. NELLIS, PlaintifE, against GEORGE R. NELLIS, ELIZA J. YOTJNG, IDA M. BORIK and EARL HOKE, Defendants. Notice is hereby given in pursuance of section 2751 of the Code of Civil Procedure, of an action brought by Wil- liam E. Nellis, plaintiff, against George E-. Nellis, as administrator of the estate of Asenath E. Nellis, deceased, Eliza J. Young, Ida M. Borik and Earl Hoke, defendants, to recover judgment upon demands and claims for goods sold and work performed for said Asenath E. Nellis dur- ing her lifetime. The following real property owned by the decedent in her lifetime and at the time of her death, situate in the county of Fulton, State of New York, bounded and described as follows: (Description), is affected by said action, and such real property will be held as security for any judgment obtained in the action. Dated Johnstown, N. Y., this day of , 189 . C. W. SMITH, Plaintiff's Attorney. Office and post-office address. No. 2 North William Street, Johnstown, N. Y. Forms in Action by Creditor, etc. 369 To the Clerk of the County of Fulton: Sir.— You are hereby directed to index the foregoing action to the names of the following defendants, to wit: George R. Nellis, Eliza J. Young, Ida M. Borik and Earl Hoke. Yours, etc., CLARENCE W. SMITH, Plaintiff's Attorney. Complaint. (See text, page 365.) Supreme Court — Fulton County. WILLIAM R. NELLIS, Plaintiff, against GEORGE W. NELLIS, ELIZA J. young, IDA M. BORIK and EARL HOKE, Defendants. The plaintiff complains of the above-named defendants, and stated the following facts as constituting his cause of action : First. Plaintiff alleges that on the 27th day of April, 1892, one, Asenath E. Nellis, of the town of Ephratah, county of Fulton and State of New York, died intestate, leaving her surviving William E. Nellis, this plaintiff herein, who was a son of decedent; George W. Nellis, her husband; Eliza J. Young, a daughter; Ida M. Borik, a daughter, and Earl Hoke, a grandson, and the only sur- viving child of a deceased daughter, defendants herein. Second. Plaintiff further alleges that the only prop- erty of which the said Asenath E. Nellis was seized and possessed at the time of her death was the following described real estate, to wit : (Description.) 24 370 Keal Actions. Third. Plaintiff further alleges that at the time of the decease of said Asenath B. Nellis, she was indebted to various persons, and among others this plaintiff, for work and labor performed and moneys expended for and on behalf of said deceased, in the sum of two thousand and sixty-four dollars and eighty-nine cents ($2,064.89). Fourth. Plaintiff further alleges that afterwards, to wit, on the 2d day of May, 1892, letters of administration were duly issued to George W. Nellis, one of the defend- ants herein, and that said George W. Nellis duly qualified and immediately entered upon his duties as such administrator. Fifth. Plaintiff further alleges that thereafter, to wit, on or about the day of , 1892, he duly pre- sented to the said defendant George W. Nellis, as admin- istrator of the estate of said Asenath B. Nellis, deceased, a duly verified claim for his services performed and moneys expended which he held and had against the said deceased for the amount of one thousand eight hundred six dollars and eighty-nine cents ($1,806.89), which said administrator received, filed and allowed for the full amount thereof, and acknowledged the said amount and claim as being just and correct. Sixth. Plaintiff further alleges that thereafter, to wit, on the 6th day of July, 1892, he brought an action against said George W. Nellis, as administrator of the estate of said Asenath B. Nellis, deceased, to recover the amount of said claim, to wit, the sum of one thousand eight hun- dred six dollars and eighty-nine cents ($1,806.89), which said claim arose upon a contract made with said deceased, for work and labor performed and moneys expended at her request and for her benefit; and that he prosecuted said action to a judgment which was filed, entered and docketed in the County Clerk's ofB.ce of the County of Fulton, New York, and which said judgment remains wholly unpaid. Forms in Action by Creditor, etc. 371 Seventh. Plaintiff further alleges that the other and only claims against the said estate of the said deceased, are as follows, to wit: H. S. Gale, M. D., for medical ser- vices and attendance on deceased, amounting to twenty- seven dollars ($27); Frederick Saltsman, for two certain promissory notes amounting to one hundred forty dollars (|140) ; Peter A. Beck, for funeral expenses, amounting to ninety-one dollars (|91). Eighth. Plaintiff further alleges, on information and belief, that on or about the day of , 189 , there was duly presented to the said administrator, George W. Nellis, the other of said claims heretofore men- tioned for the amount respectively of each, and they were by said administrator duly allowed and filed. Ninth. Plaintiff further alleges that the personal prop- erty and estate of said deceased was not and is not of sufficient value to pay any of the debts of said deceased, much less the claimsi of the plaintiff, and that said deced- ent left no personal property out of which claims of cred- itors can be paid, and that the account of said adminis- trator as filed in the Surrogate's office of Fulton county on the 13th day of January, 1896, shows no assets in his hands as proceeds of the estate of said deceased. Tenth. Plaintiff further alleges that said claims have not been paid or any part thereof. Eleventh. Plaintiff further alleges that the foregoing- described real estate is the only property of said deceased remaining to pay the claim herein set forth, and is the only property that said deceased died seized of, and that the value of said property will not exceed the sum of about one thousand dollars ($1,000). Twelfth. Plaintiff further alleges that William E. Nellis, Eliza J. Young, Ida M. Borik and George W. Nellis and Earl Hoke, are the only heirs and next of kin of the said Asenath E. Nellis, deceased, and that their 372 Keal Actions. interest in said property is as follows: The said George W. Nellis has a tenancy by the courtesy, and that said William R. Nellis, Eliza J. Young, Ida M. Borik and Earl Hoke have an equal undivided one-fourth part thereof. Thirteenth. Plaintiff further alleges that prior to the commencement of this action each and every one of said accounts were duly sold, assigned and transferred to this plaintiff, and that he is now the owner and holder thereof, and the same have not been paid or any part thereof. Fourteenth. Plaintiff further alleges that more than three years have elapsed since the death of said Asenath E. Nellis, deceased, and more than three years have elapsed since letters of administration upon her estate were granted within the State of New York. Wherefore, plaintiff demands judgment against the defendants herein as the heirs-at-law and next of kin of the said Asenath E. Nellis, deceased, as each of his or her interest appears, for the sum of two thousand sixty-four dollars and eighty-nine cents (f 2,064.89); and that such judgment be decreed a lien upon said real estate, and that execution issue against it, and that the same be sold to pay such judgment, together with the costs and disburse- ments of this action. CLARENCE W. SMITH, Plaintiff's Attorney, 2 South William Street, Johnstown, N. Y. (Verification.) FoEMs IN Action by Creditor, etc. 373 Order Staying Proceedings Pending a Petition to Sell Decedent's Beal Property. (See text, page 361.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. Stover, Justice. Supreme Court — Fulton County. WILLIAM R. NELLIS, Plaintife, against GEORGE W. NELLIS, ELIZA J. YOUNG, IDA M. BORIK and EARL HOKE, Defendants. It appearing that the above-entitled action was com- menced in this court by the service of a summons and complaint on the defendants herein on the day of , 189 ; and it also appearing to the court that at the time said action was begun to recover for claims owing and due by said decedent, Asenath E. Nellis, and to declare said claims a lien against said decedent's prop- erty; and that prior to the commencement of said action a petition had been seasonably presented to the Surro- gate's Court of the County of Fulton, for a sale of said decedent's real property to pay her debts; now, on motion of M. D. Murray, Esq., attorney for the defendants, it is ordered, that said action and all proceedings subsequent to the said complaint be and the same are hereby stayed until the said petition to dispose of said decedent's estate is fully completed, or at the option of the plaintiff said action may be discontinued. Enter in Fulton county. M. L. S., J. S. C. 374 BEAii Actions. Order Dismissing Complaint. (See text, page 361.) At a Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, N. Y., on the day of , 189 . Present — Hon. M. L. Stover, Justice. Supreme Cotjkt — Fulton County. WILLIAM R. NELLIS, Plaintiff, against GEORGE W. NELLIS, ELIZA J. YOUNG, IDA M. BORIK and EARL HOKE, Defendants. It appearing that the above-entitled action was com- menced in this court by the service of a summons and com- plaint upon the defendants herein on the day of , 189 ; and that prior to the commencement of said action a petition to sell the said decedent's real property was presented to the Surrogate's Court of the County of Fulton and State of New York; that said proceedings have been fully carried out in all respects and fully com- pleted as required by law; and that said decedent's real property has been sold in pursuance of said petition and proceedings; and that the said decedent has no other property out of which the plaintiff in this action can recover his claim as alleged in his complaint; and that said plaintiff has not alleged in his complaint or in the supplemental complaint that any other property belong- ing to the said decedent has descended to the said defend- ants or any other devisees, other than what was included in the decree of sale, in the proceedings to sell the said decedent's real property. Now, on motion of M. D. Mur- Poems in Action by Creditor, etc. 375 ray, Esq., attorney for the defendants, and no one appear- ing in opposition thereto, it is Adjudged, That the said complaint and action herein be and the same is hereby dismissed, without costs to either party. Enter in Fulton county. M. L. S., J. S. 0. (Note. — The notice of application for the above- entitled order must be made on all the parties of the hear- ing herein.) Answer of Defendant. (See text, page 365.) \ Supreme Court — Fulton County. WILLIAM E. NBLLIS, Plaintiff, against GEORGE W. NELLIS, ELIZA J. YOUNG, IDA M. BORIK and EARL HOKE, Defendants. The defendant, Ida M. Borik, answering the complaint of the plaintiff herein : First. Admits that part of the plaintiff's complaint contained in counts first, fourth, twelfth and fourteenth thereof. Second. Upon information and belief, denies each and every allegation in said complaint contained not herein expressly admitted, qualified or explained. Third. For a further and separate answer herein to the plaintiff's complaint, the defendant, Ida M. Borik, upon information and belief, alleges that the said Asenath E. Nellis, referred to in plaintiff's complaint, at the time 376 Eeai. Agt?ions. of her death was the owner of a quantity of personal prop- erty of the value of upwards of three hundred and fifty dollars (|350), all of which was liable for the payment of the lawful debts against the estate of the said Asenath E. Nellis, and which should have been exhausted or applied in liquidation of any lawful debts against the estate of the said Asenath E. Nellis, before the real estate of which said Asenath E. Nellis died seized, can be charged or used in payment of such debts, or any action maintained to charge same upon any real estate of which said Asepath E. Nellis died seized. Fourth. The defendant, Ida M. Borik, alleges that said Asenath E. Nellis at the time of her death was indebted to this defendant Ida M. Borik in the sum of twenty-seven dollars and forty-two cents ($27.42), and that the estate of the said Asenath E. Nellis is now indebted to said Ida M. Borik in the amount above stated. Fifth. For a further and separate answer and defense herein, the defendant, Ida M. Borik, upon information and belief, alleges that the several alleged causes of action set forth in plaintiff's complaint did not accrue at any time within ten years next before the commencement of this action, nor within ten years, and such additional time as is allowed to the plaintiff for the commencement of this action. Sixth. For a further and separate answer and defense, the defendant, Ida M. Borik, upon information and belief, alleges that at the time of the commencement of this action no final accounting has been had before the Surro- gate of Fulton county by the administrator of the estate of said Asenath E. Nellis, and the account of said admin- istration has not been allowed by the said Surrogate, regarding his trust and his deposition as such administra- tor of the personal property belonging to said Asenath E. Nellis at the time of her death (and that there is pending Forms in Action by Creditor, etc. 377 before the Surrogate of Fulton county proceedings insti- tuted by George W. Nellis, said administrator of the estate of said Asenath E. Nellis, in which Clarence W. Smith, plaintiff's attorney herein, appears as attorney for said administrator, for a final accounting and settlement of his trust as such administrator, wherein it will be determined whether there exists sufficient personal prop- erty belonging to said estate to pay all lawful debts of said Asenath E. Nellis, deceased). Seventh. That the proceedings above referred to before the said Surrogate, for a final accounting, all of the sev- eral claims and demands contained in the plaintiff's com- plaint, were presented by the plaintiff herein, and objec- tions were duly filed by several of the heirs of the said Asenath E. Nellis to the same. That said claims are a subject of dispute, are being contested in the said pro- ceedings now pending before said Surrogate, and are now subjects of investigation and judicial determination before said Surrogate of Fulton county, N. Y. And the fact whether the personal assets of the said Asenath E. Nellis are sufficient to pay and discharge all, or what portion of the lawful debts against the estate of said Asenath B. Nellis, is at issue and will be determined in said proceed- ings now pending before said Surrogate. That said pro- ceedings before the Surrogate of Fulton county, N. Y., has not been completed, nor has it yet been determined by said Surrogate that the creditors of said Asenath B. Nellis have been, or will be unable to collect their debts or some part thereof, out of the personal estate of said Asenath B. Nellis. That the remedy sought by the plaintiff as a creditor of said Asenath B. Nellis, against the personal estate, in the said proceedings before the Surrogate of Fulton county, has not been exhausted, and is now pending. Eighth. That said Asenath B. Nellis owned at the time of her death more than sufficient personal property to pay S78 Seal AcTIO^fg. all lawful debts against her, and all debts and expenses lawfully incurred against her estate since her death. Wherefore, the defendant demands a dismissal of the complaint, with costs, M. D. MUERAY, Defendant's Attorney, Johnstown, N. Y. (Verification.) (Note. — As to Statute of Limitations, see text, page .) Order of Reference. At a Trial and Special Term of the Supreme Court of the State of New York, held at the Court House in the city of Johnstown, Fulton county, on the 14th day of June, 1897. Present — Hon. Martin L. Stover, Justice. WILLIAM R. NELLIS, PlaintifE, against GEORGE W. NELLIS, ELIZA J. YOUNG, IDA M. BORIK and EARL HOKE, Defendants. Upon reading and filing the stipulation of the attorneys for the respective parties to this action dated June 11, 1897, for reference of all the issues in this action to Fred Linus Carroll, Esq., of Johnstown, N. Y., as sole referee, and upon motion of Clarence W. Smith, Esq., plaintiff's attorney, it is Ordered, Pursuant to said stipulation, that this said action and all the issues therein be and the same are referred to Fred Linus Carroll, Esq., of Johnstown, N. Y., as sole referee, to hear and determine. Clerk of Fulton county enter. M. L. S., ', , J. S. C. Forms in ActioK by CiREDiTOti, eo'c. ^79 Final Judgment. (See text, page 366.) Supreme Court — Fulton County. WILLIAM R. NELLIS, Plaintiff, against GEORGE W. NELLIS, ELIZA J. YOUNG, IDA M. BORIK and EARL HOKE, Defendants. The above-entitled action having been duly referred to Fred Linus Carroll, as referee herein, to try, hear and determine the issues as framed by the pleadings in the above-entitled action, and to make his report to this court; and the said referee having reported to this court, and which said report has been in all things confirmed by an order duly entered herein on the day of , 189 , by which said report and order it is found and decided that the plaintiff is entitled to recover of the defendants the amount of dollars as the amount due to the plaintiff upon the claim and debt against one Asenath E. Nellis, deceased; and it having been further found and decided by said referee in said order named, that said claim is a lien upon, and against the property hereinafter described. Now, on motion of Clarence W. Smith, Esq., attorney for the plaintiff, it is Ordered and adjudged. That the plaintiff, William E. Nellis, have and recover of the defendants herein, the sum of dollars, together with the interest thereon from the day of , 189 ; also the sum of dollars, as his costs and disbursements of this action, which have been taxed; and it is further Adjudged and directed. That said amount be collected out of the real property which has descended to the defendants from the said Asenath E. Nellis, deceased, and 380 Keal Actions. which said property is described as follows, to wit: (Description) ; and that execution do issue therefor. C. H. BUTLEE, County Clerk, Fulton County. (Note. — The above is sufficient if upon a verdict of the jury on a trial of said action, striking out the clause as to the reference and inserting upon the verdict of the jury; if it is upon the report of the referee, then the order con- firming the referee's report must be entered, upon which said judgment is based.) GENERAL INDEX. Page. Actions against heirs and devisees affecting decedent's real estate. . 361 action by a creditor 361 action, wtien maintained 361 action pending application to sell 361 action must be joint 362 action when against devisees 363 action against In one or more capacity 365 answer 365 counterclaim, must be in favor of all defendants 362, 366 creditors 364 complaint 365 costs 366 defendants 364 devisees 365 infancy 365 joint defendants 363 judgment 366 limitations 365 liability of heirs or devisees 365 mortgage 364 pending application to sell 361 property, what first exhausted 362 plaintiffs 362, 364 preferences 366, 367 when dismissed 361 what must be shown 363 when the land has been sold 367 Actions affecting Infants' and incompetents' real estate 287 actions against 287 application, by whom made 288 agreement before sale 291 by whom maintained 287 bond of committee 290 court, discretion 288 committee, appointment of 289 conveyance 292 committee to show cause 290 confirmation 291 dower, release of 290 dower, infant 290 382 General Index. Actions affecting infants' real estate — (continued) : Page. dower, inchoate riglit of 292 effect of proceedings 292 final order 293 infants over fourteen must join 289 investment 293 order, final 291 proceedings to sell, when maintained 288 petition, where presented 289 petition 289 proceeds, disposition of 292 reference 291 report of referee 291 when cannot be sold 292 Claim to real property, how determined 241 actual possession 242 action against corporations 242 amendments 245 answer 244 burden, of proof 245 corporation, action against 242 costs .' 247 complaint 242 deed lost . . : 241 damages 246 deed, void 241 defendant's proof 244 evidence 245, 247 execution 246 injunction 242 judgment 24fi lost deed 241 new trial 247 plaintiff must show 241 power of the court 245 proceedings 245 title 246 Dower, action for 125, 136 answer 128 application for gross sum 130 amount of 131 appeal 133 arbitration 135 complaint 127 consent to accept a gross sum 129 consent to accept a distinct parcel 130 costs 135 contract 136 General Index. 383 Dower, action for — (continued) : Page. damages 127 default judgment 129 dower, amount of 130 duties of referee or commissioner 131 dower in contract 136 dower in lands sold to pay decedent's debts 136 execution 135 facts necessary 125 findings of a jury 129 final judgment 132 fixed sum in lieu 132 fees 134 gross sum 126, 129, 130 how, order enforced 130 infant against widow 126 injunction 129, 135 improvements 131 jurisdiction 125 judgment in alternative 128 judgment of divorce 129 judgment by default 129 judgment, final 132 lis pendens 128 lien upon the property 133 liens to be ascertained 133 manner of conducting sale 134 order to admeasure 130 oath of referee or commissioner 131 order to increase or decrease 133 parties plaintiff 125 parties defendant 126 premises covered by mortgage 127 pleadings 127 parties bound by sale 134 purcliase money mortgage 134 preferred cause 135 receiver 129 reference 130 referee to try issues 131 report of referee or commissioner 132 report of sale 134 rights of each party and value of dower 134 survey 129 sale 133 time in which the action must be brought 127 vacancies, how filled 131 where triable 125 when tried by a jury 125 384 Gbnekal Index. Page. Ejectment 1 answer 13, 14 _ appeal 21 board of fisheries, game, etc 2 claim under color of title 2 costs 18 complaint 11, 13 defendants 8, 10 death of a party 11 execution 19 injunction 15 jurisdiction 1 jury trial 16 judgment 17, 19, 20 lis pendens 16 new parties 10 new trials 19, 21 plaintiff 5-8 proceeding 10, 11, 15 proceeding after judgment 19 reply 14 receiver ■ 15 State lands 2, 5 verdict ; . . 16 when maintained 1, 2, 5 when not maintained 3-5 Foreclosure mechanics' liens 254 action same as foreclosure 256 action, when must be brought 257 action, when can be brought 257 action, courts not of record 267 additional allowance 264 answer 258, 260 appeals, courts not of record 269 appeals, courts of record 267 burden of proof 264 complaint 259 complaint, what must be stated 259 complaint, sub-contractor's 260 complaint, courts not of record 267 counterclaim 260 consolidation 261 costs against owner 264 costs and disbursements, court of record 261, 264 costs, courts not of record 269 courts not of record 267 deposits 263 General Index. 385 Foreclosure mechanics' liens — (continued) : Page. defendants 258 damages 264 discharge 264, 266 enforcement 256 equitable proceedings 259 evidence 261, 263 execution, courts not of record 268 foreclosure no har to suit 257 failure to prove lien 260 jurisdiction county court 256 judgment, how enforced 264 judgment on failure to establish lien 265 judgment, personal 265 judgment for deficiency 265 judgment form 265 judgment to direct sale 266 judgment 266 judgment on default, courts not of record 268 judgment, how enforced, courts not of record 268 judgment for defendant, courts not of record 269 lien, duration of 255 lien foreclosed 256 lien enforced 257 lien, how discharged 262 notice, what to state 254 notice, verification 255 notice, filing 255 notice of pendency 257 notice of pendency, when not filed 263 notice to discharge 266 notice, proof of 266 order extending lien 256 offer to pay into court 261 offer to accept 262 plaintiff's 258 priority 262 proceedings, courts not of record 268 summons with notice 258 service by publication 267 time, how computed 257 trial by court 263 trial by jury 263 transcript 265 trial courts not of record 268 verification 255 Foreclosure of mortgage by action 168 appearances 176 25 386 Generai, Index. Foreclosure of mortgage by action — (continued) : Page. answer 179 application for judgment 181 appeal 184 complaint 178 defendants 171-175 death of parties 177 default 180 debt, not all due 185 dower 189 jurisdiction 168, 176 judgment 183-185 judgment for deficiency 185, 191 lis pendens 177 liens 186 notice 189 object of the action 168 order of sale 186 plaintiffs 169-171 payment 182, 187 prior incumbrances 186 proceedings after sale 189 reference 181, 182 report 181, 182, 189 receiver 183 service 176 substitution ■. 182 sale 187 surplus 191-194 trial 182 tender 187 Foreclosure of mortgage by advertisement 224 affidavits, what to show 227-229 by advertisement, when 224 contents of notice 224 costs 230 cemetery 232 filing and recording notice 230 judgment 224 moneys to be paid to court 230, 232 mortgage to the people 232 notice 225 notice must state 226 proofs 228 parties notified 226 publication 226 recording 230 sale . . 227 GrBNfiEAii Index. 38t Foreclosure of mortgage by advertisement — (continued) : Page. statutory proceedings 224 service of notice 225 surplus 231 Strict foreclosure 215 complaint 216 in what case 215 judgment . . ; 216 proceedings 216 parties 216 pleadings 216 when resorted to 215 Partition, appeal from interlocutory judgment 82 action, by whom 55 action by Incompetents 55 answer 60 accounting 62 appeal 82 costs 68, 77, 78 consent 54 complaint, dismissed when 55 complaint 58-60 commissioners 67-69 defendants 57 distribution 78 default 63 . dower 78, 79 extra allowance 78 for what property 54 final judgment 65-70 fees 77 infant's interest, when not sold 70 improvements 62 interlocutory judgment 65 jury trial 62 judgment 65-70 jurisdiction 54 judgment, final 65-70 judgment, binds whom 79, 80 judgment to sell 70 judgment confirming 71 lis pendens 58 liens 64, 71 notice 64, 68 possession 77, gi proceedings to sell 70 place of trial 54 plaintiffs 54-56 388 GeNERAX lNDl53t. Partition — (continued) : PagS. partial partition 65, 66 receiver 62 reply 62 reference 62, 64 reports 64, 67, 71, 75 State lands 56 substitution 58, 66 sale 65-76 void devise 61 Sale of decedent's real property to pay debts 310 application, to wliat court 311 action to foreclose, efCect of 320 appeals 320 costs S22 courts 311 citation 312 commissioners 314 conveyance 318 decree 313 decree to sell 315 dower 319, 323 decree to pay debts 320 exception, of property liable 311 infants 319 jurisdiction 311 jurisdiction, extent of 311 lease 314 liens 315 notice of sale 317 notice of distribution 319 order of sale 317 order confirming sale 318 proceedings, special 310 proceedings, statutory 310 property liable 311 proceedings, commenced how 311 petition 312 report of sale 318 sale, order of 317 sale 317 title 318 trial by referee or jury ; 323 INDEX TO PRECEDENTS. Page., Action against lieirs and devisees 368 answer 375 complaint 369 judgment, final 379 notice of pendency 368 order dismissing complaint 374 order of reference 378 order staying proceedings 373 Actions affecting infants and incompetents 294 bond of committee 297 contract for sale 304 notice of hearing 300 order confirming referee's report 302 order to file bond 296 order of reference 299 order confirming report of sales 306 order on final reports 309 appointing hearing before referee 300 petition 294 report of referee 301 notice of sale 303 report of sale 305 report of conveyance 307 Claim to real property 248 notice of pendency 248 complaint 249 complaint on void deed 250 complaint to determine dower 251 judgment, final 252 Dower ■ 137 answer 142 affidavit for leave to pay gross sum 160 complaint for dower 137 complaint for dower in alien property 139 complaint to determine dower 141 consent to accept gross sum 160 judgment, interlocutory, on default 144 judgment, final, to admeasure 154 judgment. Interlocutory, to sell 163 judgment, final 159 judgment, final, of sale 165 390 Index to Precedents. Dower — (continued) : Page. judgment on report of sale 167 notice of motion for reference 145 notice of hearing 148 notice for final judgment 152 notice of application to pay gross sum 161 oath of referee 147 order of reference 146 order appointing hearing 148 order for final judgment to admeasure 152 order confirming referee's report 158 order granting leave to pay gross sum 162 report of referee 149 report of referee to admeasure dower 150 report of referee as to damages 155 report of referee as to dower right 157 report of sale 164 reference to ascertain dower right 156 verdict of jury 143 Ejectment 22 affidavit, paying money into court 34 affidavit, on succeeding to title 37 affidavit, to produce authority 40 affidavit of authority 42 affidavit, on application for new trial 51 answer to an action by the people 45 answer of defendants occupying inseveralty 46 answer of defendant setting up title 44 complaint for wrongful possession 23 complaint for unlawful entry 24 complaint for State lands 25 complaint by joint tenant or tenant in common 26 complaint by grantee in name of grantor 28 complaint to re-enter under lease 30 judgment on default 33 judgment on verdict 48 judgment for damages only 50 lis pendens 22 motion of substitution 38 notice of pendency 22 notice of intention to re-enter 29 notice of application for possession 35 notice of authority 42 notice of motion for new trial 52 order dismissing complaint 32 order directing property to be delivered 36 order to divide the action 39 order to produce authority 41 order granting new trial 52 Index to Precedents. 391 Ejectment — (continued) : Page. verdict, report or decision 33 verdict to recover possession 47 verdict on expiration of plaintiff's riglit 48 Mortgage, foreclosure by action 195 affidavit of reference 206 ansvFer 204 answer of infant by guardian 206 complaint 197 complaint to indemnify 202 judgment or deficiency 214 judgment, final 211 notice of pendency 196 notice of confirmation 210 order of reference 207 report of referee 208 report of sale 214 summons and notice 195 Mortgage, foreclosure by advertisement 233 affidavit of service 235 affidavit of posting 236 affidavit of delivery to county clerk 236 affidavit affixing notice in county clerk's book 237 affidavit of publication 237 affidavit of auctioneer 238 notice of sale 233 Mortgage, strict foreclosure 217 complaint 217 judgment 220 Mechanics' liens, foreclosure 270 notice to commence 270 notice of pendency 274 affidavit of service of notice 270 affidavit of, no action commenced 272 order to discharge 272 order of reference 280 summons and notice 273 complaint, materialman 275 complaint, contractor 278 report of referee 281 judgment on report 284 Partition 83 affidavit for leave for infant to bring action 92 affidavit of publication 83 affidavit of reference 96 affidavit of reference to ascertain liens 110 application for leave to bring suit 93 complaint, void devise 87 392 Index to Pkbcbdents. Partition — (continued) : Page. complaint setting up title 89 complaint by assignee 91 judgment, interlocutory, to partition 102 judgment, final, actual partition 108 judgment, interlocutory, to sell 114 judgment, final, to sell 119 notice of pendency of action 86 notice for reference 97 notice for confirmation and final judgment 107 notice for appointment of referee Ill notice to creditors to prevent claims 112 notice of sale 116 notice for confirmation of report to sell 118 notice for confirmation of sale 122 oath of commissioners 104 order granting leave to bring action 94 order of reference 98 order appointing referee to ascertain liens Ill order of substitution 124 order for publication 84 report of referee as to rights 100 report of commissioners to partition 105 report of referee to sell 113 report of referee of sale 117 report of referee final 122 release of dower 118 Sale of decedent's real property 324 petition .■ 324 order for citation 329 order appointing commissioners 331 order to sell 334 order to execute the decree 340 order of notice of confirmation 348 order confirming sale 351 order to pay money to treasurer 353 order of notice of distribution 354 order, final, of distribution 357 citation 331 report of commissioners 333 report of sale 346 bond of administrator 338 notice of sale 341 afiidavit of, posting notice ; 342 affidavit of, mailing notice 343, 350 terms of sale 344 notice to show^ cause 349 notice of distribution 355 consent to accept gross sum of dower 356 release to treasurer 359