the judgment, and granting a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established; but not otherwise.

Id.. 38; Sheriden v. Linden, 21 Alb. L. J. 475; s. c. 10 N. Y. Weekly Dig. 258; Lang v. Ropke, 1 Duer, 701: Christie v. Bloomingdale. 18 How. Pr. 12; see, also, Sheriden v. Andrews, 49 N. Y. 478.

§ 1527. Id.; exception in case of disability.-In a case specified in the last section, if the defendant is, at the time of the filing of the judgment-roll, either

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life;

The time of such a disability is not a part of the three years, specified in the last section; but such a defendant, his heir, devisee, or assignee, may commence an action for the recovery of the real property claimed, at any time within three years after the disability ceases;

but not afterwards.

Id., 39; see, also, 375, 396 and 1291, ante.

§ 1528. The last three sections qualified. The last three sections are not applicable, where the action is founded upon an allegation of rent in arrear; or in a case to which section 445 of this act is applicable.

New. Christie v. Bloomingdale, 18 How. Pr. 12; see, also, 445 and 1508, ante.

1529. Possession not to be changed by vacating of judgment, except, etc.-Where the plaintiff has taken possession of real property by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment, except as prescribed in section 1525 or section 1526 of this act. In such a case, if the defendant thereafter recovers final judgment in the action, it must award to him the restitution of the possession of the property; and he may have an execution thereupon for the delivery of the possession to him, as if he was plaintiff.

Id., 41, amended; Huntington v. Forkson, 7 Hill, 195; Olendorf r. Cook, I Lans. 37; Danby v. Brown, 43 How. Pr. 17; People v. Cooper, 20 Hun, 486.

1530. Evidence on new trial.-Upon a new trial,

granted as prescribed in this article, the defendant may show any matter in defence, which he might show to entitle him to recover the possession of the property, if he was plaintiff in the action.

Id., 42.

1531. Damages recoverable; set-off by defendant. --In an action, brought as prescribed in this article, the plaintiff, where he recovers judgment for the property, or possession of the property, is entitled to recover, as damages, the rents and profits, or the value of the use and occupation, of the real property recovered, for a term not exceeding six years; but the damages shall not include the value of the use of any improvements made by the defendant, or those under whom he claims. Where permanent improvements have been made, in good faith, by the defendant, or those under whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant, in reduction of the damages of the plaintiff, but not beyond the amount of those damages.

See 22 43, 49 and 50; Jackson v. Loomis, 4 Cow. 168: Budd v. Walker, 9 Barb. 493; Grout v. Cooper, 9 Hun, 326; Morgan v. Varick, 8 Wend. 587; Genet v. Wood, 24 id. 443; Woodhull v. Rosenthal, 61 N. Y. 382.

ARTICLE SECOND.

ACTION FOR PARTITION.

SEC. 1532. When action for partition may be brought.

1533. Id.; by remainderman.

1534. Id.; by an infant.

1535. Guardian ad litem; how appointed.

1536, Security.

1537. When heir may maintain action for partition of devised

property.

1538. Who must be parties.

1539. Who may be made parties.

1540. Id.; as to persons having liens,

1541. Provision, where a party is unknown.

1542. Complaint to state interests of parties.

1543. Title of parties may be tried.

1544. Issues of fact, triable by jury.

1545. When title to be ascertained by the court.

1546. Interlocutory judgment.

1547. Partial partition; when made.

1548. Shares may be set off in common.

1549. Appointment of commissioners.

1550. Commissioners to be sworn, etc.

1551. Id.; when to make partition.

1552. Partition; how made.

1553. Provision where there is a particular estate.

SEC. 1554. Report of commissioners.

1555. Fees and expenses.

1556. Confirming or setting aside report.

1557. Final judgment on report. Effect thereof.

1558. Judgment must direct delivery of possession.

1559. Costs; how awarded. Id.; against unknown parties.
1560. Sale of property; when directed.

1561. Reference to inquire as to creditors.

1562. Duty of referee.

1563. Money to be paid into court.

1564. Application for money.

1565. Payment of incumbrances.

1566. Other parties not to be delayed.

1567. Sale of dower interest.

1568. Purchaser to hold the property free therefrom.

1569. Gross sum to be paid to or invested for tenant in dower, etc. 1570. Interests of owners of future estates to be protected.

1571. Married woman may release her interest.

1572. Unknown owners.

1573. Sale; terms of credit thereupon.

1574. Credit; how secured.

1575. Separate securities.

1576. Report of sale.

1577. Final Judgment; effect thereof.

1578. Id.; effect thereof upon incumbrancers.
1579. Costs and expenses; how paid.
1580. Distribution of proceeds.

1581. Shares of infants.

1582. Id.; of unknown and absent owners.

1583. Id.; of tenants of particular estates.

1584. Court may require security to refund.

1585. Security to be taken in name of county treasurer.

1586. Action thereupon.

1587. Compensation to equalize partition.

1588. Proceedings on death of parties.

1589. Rents, etc., may be adjusted.

1590. Partition by guardian of infant, committee of lunatic, etc. 1591. Contents of petition.

1592. Court may authorize partition.

1593. Effect of releases.

1594. When the State is interested.

1595. Exemplified copy of judgment may be recorded.

1532. When action for partition may be brought. -Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made, without great preju dice to the owners.

2 R. S. 317, 21 (2 Edm. 326), amended: Gallie v. Eagle, 65 Barb. 583; Brevoort v. Brevoort, 70 N. Y. 16; Therasson r. Waite, 52 How. Pr. 62 Knapp r. Hungerford, 7 Hun, 583; Monarque . Monarque, 19 id. 332 Bradshaw v. Callahan, 8 Johns, 558; Beebe . Grifting, 14 N. Y. 235; Hewlette. Wood, 62 id. 75; Matter of Cavanagh, 14 Abb. Pr. 258; Croghan r. Livingston, 17 N. Y. 218; German v. Mackin, 6 Paige, 28; Dubois v. Cassily, 75 N. Y. 298; Supr. Ct. Rule, 69; Florence v. Hopkins, 46 N. Y. 182; Moore v. Moore, 47 id. 467.

1533. Id.; by remainderman.- Where two or more persons hold, as joint tenants or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for a partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein. But in such an action the property cannot be sold; and if it appears, in any stage thereof, that partition cannot be inade, without great prejudice to the owners, the complaint must be dismissed. Such a dismissal does not affect the right of any party to bring a new action, after the determination of the particular estate.

New. Settles conflict as to the construction of former statute; see Brownell v. Brownell, 19 Wend. 367; Striker v. Mott, 2 Paige, 387; Fleet v. Dorland, 11 How. Pr. 489; Sullivan v. Sullivan, 66 N. Y. 37; Blakely v. Calder, 15 id. 617: Howell v. Mills, 7 Lans. 193; 8. c., 56 N. Y. 226; Jenkins r. Fahey, 73 id. 355.

1534. Id.; by infant.- An action for the partition of real property shall not be brought by an infant, except by the written authority of the surrogate of the county in which the property, or a part thereof, is situated. The authority shall not be given, unless the surrogate is satisfied, by affidavit or other competent evidence, that the interests of the infant will be promoted by bringing the action. A judgment for a partition or sale shall not be rendered in such an action, unless the court is satisfied that the interests of the infant will be promoted thereby, and that fact is expressly recited in the judgment.

L. 1852, ch. 277, 21 and 2, amended; Struppman r. Muller, 52 How. Pr. 211; Gallie v. Eagle, 65 Barb. 583; Lansing v. Gulick, 26 How. Pr. 250.

§ 1535. Guardian ad litem; how appointed.- A guardian ad litem for an infant party, in an action for partition, can be appointed only by the court.

Id.. and 2 R. S. 317. 2 (2 Edm. 326); also, see 472, ante; Wood v. Martin, 66 Barb. 211; Cook v. Rawdon, 6 How. 233; Rules 51 and 52 Supr. Ct.

§ 1536. Security. The security to be given by the guardian ad litem for an infant party, in an action for partition, must be a bond, executed by him and one or more sureties, as the court directs, in a sum fixed by the court, conditioned for the faithful discharge of the

trust committed to him as guardian, and to render a just and true account of his guardianship, in any court or place, when thereunto required. The bond must be filed with the clerk, before the guardian enters upon the execution of his duties; and it cannot be dispensed with, although he is the general guardian of the in

fant.

2 R. S. 317, 3 and 4 (2 Edm. 326), amended; see Strupman v. Muller, 52 How. Pr. 211; Lansing v. Gulick, 26 id. 250; Croghan v. Livingston, 17 N. Y. 218.

1537. When heir may maintain action for partition of devised property. A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died, holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such a devise. But in such an action, the plaintiff must allege and establish that the apparent devise is void.

L. 1853, ch. 238, 2 (4 Edm. 504); Voessing v. Voessing, 12 Hun, 678; Stewart v. Monroe, 56 How. Pr. 193; Hewlett v. Wood, 55 N. Y. 634; 62 id. 75: Hall v. Hall, 13 Hun, 449; Gordon v. Sterling, 13 How. Pr. 405; Woodruff v. Cook, 47 Barb. 305.

§ 1538. Who must be parties. Every person having an undivided share, in possession or otherwise, in the property, as tenant in fee, for life, by the curtesy, or for years; every person entitled to the reversion, remainder, or inheritance of an undivided share, after the determination of a particular estate therein; every person who, by any contingency, contained in a devise, or grant, or otherwise, is or may become entitled to a beneficial interest in an undivided share thereof; every person having an inchoate right of dower in an undivided share in the property; and every person having a right of dower in the property, or any part thereof, which has not been admeasured, must be made a party to an action for partition. But no person, other than a joint tenant or a tenant in common of the property, shall be a plaintiff in the action.

2 R. S. 318, 6, amended; Jordan v. Poillon. 77 N. Y. 518: Prentice v. Jansen, 21 Alb. L. J. 174 (not yet reported); Rosekrans r. White, 7 Lans. 486; Ackley v. Dygert, 33 Barb. 176; see Canfield e. Ford, 16 How. 473.