
    Jackson, ex dem. Rensselaer and others, against T. Hogeboom. Same against J. Hogeboom.
    ALBANY,
    Jan. 1812.
    In an action of ejectment the court have the power consent to n survey of the nkpossessioc! In an action oí P.ÍpcJ tLr'
    E. WILLIAMS, for the plaintiff, moved for a rule to authorize the lessor of the plaintiff to make a survey of the farms of the defendants, comprising land included in a lease from the ancestors of the lessors, to the ancestor of the defendants. He read an affidavit of 7 ... one of the lessors, stating that before the last circuit court, in Columbia, he applied to the defendants for permission to make the survey, in order to ascertain the quantities of land in the possession pf the defendants, not included in the lease, but the defendants forbade the survey, and refused to permit the lessor or a surveyor to enter on the land; and one of them threatened violence, if any attempt should be made to enter; that a survey was made in the highway, and on the adjacent land; but the counsel for the lessors were of opinion, that a satisfactory location of the land comprised in the lease could not be made, without going upon the land, and that for that reason the plaintiff did not proceed to trial at the last circuit.
    
      Van Buren, contra, read an affidavit of one of the defendants, denying the charge of any offer of violence, and stating that he did not procure the other defendant to threaten any violence; that the cause was noticed for trial at the last circuit in Columbia ; and not being brought on to trial, pursuant to such notice, he moved for judgment as in case of nonsuit.
    
      Williams opposed the motion for a nonsuit, on the ground sta„ ted in the affidavit read, in support of the motion for an order for a survey.
   Per Curiam.

We have no power to compel the defendants to consent to a survey of their farms. The motion of the plaintiff must, therefore, be denied. We will not, however, compel the plaintiff to enter into the usual stipulation: but, inasmuch as it does not appear, but that the notice for trial might have been countermanded, when it ivas discovered that the survey was insufficient, the plaintiff must pay the costs of the last circuit.  