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tition and a sale, and will not justify a sale when the benefit from it is small, compared with the value of the property. The "prejudice" mentioned in the statute means a prejudice to all the owners and not to a part only (Van Arsdale v. Allen, 2 Barb. 599; see 6 Paige, 541; 1 Edw. Ch. R. 565).

a. Judgment.-The judgment must set forth the estate of each known owner or of the defendants or some of them, collectively, when their rights between each other are disputed (Phelps v. Green, 3 Johns. Ch. 302). There can be no objection to a statement that certain definite portions belong, collectively, to owners who are unknown (Hyatt v. Pugsley, 23 Barb. 302).

b. The referee omitting to annex to his report the searches for incumbrances, does not render the judgment on such report irregular (Noble v. Cromwell, 27 How. 289).

c. The judgment, besides declaring the rights of the parties and directing a partition, may provide for an account of rents between the parties (Brownson v. Gifford, 8 390). But if the complaint do not demand an account of rents against defendants in possession, and those defendants do not answer, no such account can be decreed (Bullwinker v. Ryker, 12 Abb. 311).

d. New trial.-In partition, a new trial will be granted on very slight grounds (Clayton v. Yarrington, 33 Barb. 144).

e. Manner of sale.-See Rule 73; Laws of 1869, p. 1377, held to be unconstitutional (7 Abb. N. S. 1).

f. Notice of sale.—The provisions of the revised statutes, as to notice of sales by sheriffs, apply to sales in partition (Le Fevre v. Laraway, 22 Barb. 167). Where the sale was directed to be advertised for three weeks instead of six,-held that the error might be amended (Alvord v. Beach, 5 Abb. 451). The statutory provision, as to selling in parcels, is directory merely (1 Johns. Ch. R. 503; 7 Abb. 183). Notices of sales of land in Hamilton county may be published in Fulton county (Laws 1860, ch. 297).

g. Sheriff liable to account for proceeds of sale.-The sheriff is liable to account to the parties interested for the proceeds of a sale on partition, although the attorney in the action in fact conducts the sale and receives the proceeds (Van Tassel v. Van Tassel, 31 Barb. 439). For the omis. sion of a sheriff to pay over to the county treasurer the proceeds of a sale of lands in a partition action, the period of limitation begins to run at the time the omission occurs (id.)

h. Death of plaintiff.-In an action for a partition and account of rents, the heir may revive as to the partition, and the personal representatives as to the account, semble (Hoffman v. Treadwell, 6 Paige, 308). In an action for partition, after judgment for sale and partition, and the advertising the sale had commenced, the plaintiff died, and such of his heirs as were not then already parties defendant were substituted in his place as plaintiffs,-held that it was not necessary to advertise anew, changing the title of the cause (Thwing v. Thwing, 9 Abb. 323; 18 How. 458).

i. Death of defendant.—Where, pending a partition suit, and after the expiration of the time to answer by one defendant, and before putting in any answer, that defendant dies, and the action is continued without making his heirs or devisees parties, the subsequent proceedings are void as to the interest of such deceased defendant (Requa v. Holmes, 16 N. Y. 123; 26 N. Y. 338; and see Waring v. Waring, 7 Abb. 472). In an action for partition, if one of several defendants dies pending the action, all that is necessary for the cause to proceed is that within a year an order be obtained under section 121 (Gordon v. Sterling, 13 How. 405).

j. Bringing in new parties by amendment.-A partition suit is an action for the recovery of real property within section 122, so that the court may order a person, not a party, but having an interest in the subject, to be made a party by amendment (Waring v. Waring, 3 Abb. 246).

k. Discharging purchaser, resale, &c.-The court will not discharge a purchaser because of any defect in the pleadings or proceedings which are amendable (Noble v. Cromwell, 6 Abb. 59; 26 Barb. 475); and as

to discharging purchaser, see Mead v. Mitchell, 5 Abb. 92; 17 N. Y. 210; Blakeley v. Calder, 15 id. 617; 13 How. 476; Croghan v. Livingston, 6 Abb. 350; 17 N. Y. 218; Waring v. Waring, 7 Abb. 476; Disbrow v. Folger, 5 id. 53; Rogers v. McLean, 10 Abb. 306. If a purchaser neglects to comply with the terms of sale within a reasonable time, the court will deprive him of the benefit of his bid, and order a new sale in cases where a resale is deemed more beneficial for the parties (Jackson v. Edwards, 7 Paige, 387; 22 Wend. 498); as to resale, see Le Fevre v. Laraway (22 Barb. 167). The court may release a purchaser from his bid on the ground of unreasonable delay to his prejudice on the part of the sellers (Jackson v. Edwards, 7 Paige, 387), or the title is doubtful. Where one of the defendants has not been properly served with process a purchaser will not be required to complete (Cook v. Farnham, 21 How. 286; O'Reilly v. King, 28 How. 408).

a. Inchoate right of dower.-How provided for, see 4 Sand. Ch. R. 396; 11 How. 176; 5 Abb. 54; Laws 184 ch. 177 and 379.

b. Amendments.—An error in the description of the interests of the parties may be amended on the trial (Thompson v. Wheeler, 15 Wend. 340; Noble v. Cromwell, 26 Barb. 475; 6 Abb. 59). And, if the plaintiff omits to file any of the papers necessary to the regularity of the judgment, the court may allow them to be filed, nunc pro tunc (Waring v. Waring, 7 Abb. 473; Croghan v. Livingston, 6 Abb. 350; 17 N. Y. 218; Noble v. Cromwell, 26 Barb. 475). And where, in a judgment of sale, the sale was directed to be advertised three weeks instead of six, as required by law, but in fact the advertisement was published six weeks,-held, on motion to compel a purchaser to take title, that the error might then be corrected (Alvord v. Beach, 5 Abb. 451). So, too, the court will correct of its own motion a palpable error in the referee's report as to the extent of the interest of an infant party (Safford v. Safford, 7 Paige, 259; Carpenter v. Schermerhorn, 2 Barb. Ch. R. 314); and without sending back the report (id.) Where, through inadvertence, the names of certain defendants were omitted from the summons filed,-held that, on its being shown that such omitted names were actually parties, the summons might be amended after judgment and sale (Van Wyck v. Hardy, 11 Abb. 473; 20 How. 222). All irregularities in the proceedings may be amended, nunc pro tunc (Bogert v. Bogert, 45 Barb 121; Noble v. Cromwell, 27 How. 289; Rogers v. McLean, 31 How. 279; Clark v. Clark, 14 Abb. 300; 24 How. 479).

c. Plaintiff must prosecute his suit with reasonable diligence. Where a party commences an action for a partition and files a notice of lis pendens, but fails to proceed in the action with reasonable dispatch, a party named as a defendant, but who has not been served with summons, may apply by petition to have the plaintiff's proceedings vacated (Lyle v. Smith, 13 How. 104).

d. Value of inchoate tenancy by the courtesy.—The value of an inchoate tenancy by the courtesy depends not only upon the principle applicable to life-annuities and survivorships, but upon the fact of issue; and, if none, upon the likelihood of issue (Benedict v. Seymour, 11 How. 176).

e. Cost.-When the plaintiff, in a suit in partition, makes persons defendants who have no interest in the subject-matter of the suit, the costs of such defendants will not be charged upon the fund or against their codefendants, but must be paid by the plaintiff personally, unless such unnecessary parties are brought in at the request of the other defendants (Hammersley v. Hammersley, 7 N. Y. Leg. Obs. 127). A doweress, when properly a party to the suit, is chargeable with a portion of the costs (Tanner v. Niles, 1 Barb. 560; see 3 Johns. Ch. R. 302; 1 Sand. Ch. R. 40; see ante, section 321, note).

f. Attorney's lien.-The attorney for the plaintiff in a partition suit acquires a lien for his disbursements, on the share of the plaintiff in the property in suit, of which the plaintiff cannot divest him by an assignment of his interest pending the action (Creighton v. Ingersoll, 20 Barb. 541).

g. Judgment-roll-in partition (Lynch v. Rome Gaslight Co. 42 Barb. 591). And see Laws 1851, ch. 277, as to recording decrees.


Actions to determine Conflicting Claims to Real Property, and for Waste and Nuisance.

SECTION 449. Actions to determine claims to real property, how prose


450. Action of waste abolished. Waste, how remediable.

451. Provisions of revised statutes applicable to action for waste under this act.

452. When judgment of forfeiture and eviction to be given.
453. Writ of nuisance abolished.

454. Remedy for injuries heretofore remediable by writ of nui


$449. Actions to determine claims to real property, how prosecuted.

Proceedings to compel the determination of claims to real property, pursuant to the provisions of the revised statutes, may be prosecuted by action under this act, without regard to the forms of the proceedings as they are prescribed by those statutes.

a. Action.-An action to determine conflicting claims to real property is governed by the same rules as other actions (see Peck v. Brown, 26 How. 350; Laws 1855, p. 943; Hammond v. Tillotson, 18 Barb. 332; Mann v. Provost, 3 Abb. 446).

b. The provisions of the revised statutes as to conflicting claims to real estate, and this section 449 of the code, now apply to married women (Laws 1864, ch. 219), and to corporations (Laws 1854, p. 276).

c. Who may maintain the action (see Onderdonk v. Mott, 34 Barb. 106). Pleadings (see Hager v. Hager, 38 Barb. 92).

d. Appeal.-In case of a trial, in the proceedings to determine conflicting claims, either party conceiving himself aggrieved may appeal as in personal actions under the code (Laws of 1855, p. 945, § 11).

e. Laws amended.—The provisions of the revised statutes relative to the determination of claims to real property (2 R. S. 313) were amended by Laws of 1848, p. 67; Laws of 1854, p. 276; Laws of 1855, p. 943; Laws of 1860, ch. 173; and Laws of 1864, ch. 219.

f. Notice. The proceedings may still be had by notice under the statute (Barnard v. Simms, 42 Barb. 304; Burnham v. Onderdonk, N. Y. Transcript, June 10, 1870).

$ 450. Action of waste abolished. Waste, how remediable. The action of waste is abolished; but any proceedings heretofore commenced, or judgment rendered, or right acquired, shall not be affected thereby. Wrongs heretofore remediable by action. of waste, are subjects of action as other wrongs, in which action

there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises.

See Harder v. Harder, 26 Barb. 409; Robinson v. Wheeler, 25 N. Y. 252.

§ 451. Provisions of revised statutes applicable to action for waste under this act.

The provisions of the revised statutes relating to the action of waste, shall apply to an action for waste, brought under this act, without regard to the form of the action, so far as the same can be so applied.

$ 452.

When judgment of forfeiture and eviction to be

Judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate, or unexpired term, or to have been done in malice.


§ 453. Writ of nuisance abolished.

The writ of nuisance is abolished; but any proceeding heretofore commenced, or any judgment rendered, or right acquired, shall not be affected thereby.

$ 454. Remedy for injuries heretofore remediable by writ of nuisance.

Injuries heretofore remediable by writ of nuisance, are subjects of action, as other injuries; and in such action there may be judgment for damages, or for the removal of the nuisance, or both.

a. An action pursuant to this section is a substitute for the statute remedy by writ of nuisance, and the plaintiff must aver in his complaint all that was before requisite to sustain an action of that nature (Ellsworth v. Putnam, 16 Barb. 565; see Hubbard v. Russell, 24 Barb 404; in Brown v. Woodworth, 5 Barb. 550; Hess v. Buffulo &c. R. R. Co. 29 Barb. 391; Brady v. Weeks, 3 Barb. 157; Clark v. Storrs, 4 Barb, 562; Brown v. Cayuga R. R. Co. 12 N. Y. 486).


General Provisions relating to Actions concerning Real

§ 455. Provisions of revised statutes applicable thereto.

The general provisions of the revised statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject-matter of the action, and without regard to its form.

a. Ejectment.-See 2 R. S. 303 (tit. 1, ch. 5, part 3); Laws 1840, ch. 239: Laws 1847, ch. 337; Laws 1846, ch. 159. Section 18 of the aforesaid title (part 3, ch. 5, tit. 1), providing that no actual entry under title need be proved, is not repealed by the code, but is expressly retained by section 455 (Lawrence v. Williams, 1 Duer, 587); and sections 8, 30, 34, of the same title, are also retained, and are still in force (Budd v. Bingham, 18 Barb. 498). So is section 31 (Lang v. Wilbraham, 2 Duer, 171), and section 37 (Rogers v. Wing, 5 How. 50; Lang v. Ropke, 1 Duer, 701).

b. When ejectment lies.-The action of ejectment will lie whenever a right of entry exists and the interest is of such a character that it can be held and enjoyed, and possession thereof delivered in execution of a judgment for its recovery (Rowan v. Kelsey, 18 Barb. 484; Child v. Chappel, 9 N. Y. 246). It will not lie for a mere easement (Wilklow v. Lane, 37 Barb. 244). It lies against a railroad company for laying their rail-track over land dedicated by the plaintiff to public use as a street, and running their cars on such track (Wager v. Troy Union R. R. Co. 25 N. Y. 526; Adams v. Saratoga R. R. Co. 24 N. Y. 655). Ejectment will lie for land under water, granted by the commissioners of the land office, for the purpose of erecting docks, &c., for commercial purposes (Champlain and St Lawrence R. R. Co. v. Valentine, 19 Barb. 484). A contract dated at a future day, leasing lands for a term, commencing at such day, gives the lessee, when the day arrives, the right of possession and to maintain ejectment against a stranger wrongfully withholding (Trull v. Granger, 8 N. Y. 115; see Spencer v. Tobey, 22 Barb. 260). But under a naked contract of purchase which is silent on the subject of possession, the purchaser acquires no right to the possession and no right of entry, and cannot maintain ejectment (Kellogg v. Kellogg, 6 Barb. 116). A right of possession in presenti is necessary and all that is necessary to maintain ejectment (Trull v. Ġranger, 8 N. Y. 115; The People v. Mayor of N. Y. 10 Abb. 113; Hunter v. Sandy Hill, 6 Hill, 411; Bryan v. Betts, 27 Barb. 503; McLean v. McDonald, 2 Barb. 534). The possession of real estate is prima facie evidence of the highest estate in the property, namely, a seisin in fee (Hill v. Draper, 10 Barb. 454; Barnhart v. Greenshields, 28 Eng. Law and Eq. R. 83; Maltonner v. Dimmick, 4 Barb. 566). Ejectment does not lie against a mortgagee in possession (Bolton v. Brewster, 32 Barb. 390); nor by a mortgagee against his mortgagor (Sahler v. Signer, 37 Barb. 329); nor against one who erects a gutter on his own premises projecting over the land of his neighbor (Aiken v. Benedict, 39 Barb. 400); nor against a municipal corporation for using a street as a public street (Cowenhoven v. City of Brooklyn, 38 Barb. 9). Ejectment lies against one who enters into possession of land of another, with his assent, under a contract

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