
    Charles G. Doremus, Resp’t, v. Arienna M. Doremus et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    1. Partition—Extba allowance.
    In an action for partition the value of the property sought to be partitioned is the subject matter of the action within the meaning of § 3253 of the Code, and not simply the plaintiff’s share thereof. The question is not affected by the fact that the action follows a successful attack upon a will.
    2. Same.
    In arriving at the value of the subject matter involved, the rents collected by a receiver pendente lite should not be added to the amount realized on the sale of the property.
    S. Same.
    The court cannot award to the parties in the aggregate more than five per cent, on the value of the subject matter.
    4. Same—G-uabdian ad litem.
    An extra allowance should not be allowed to the guardian ad litem of an infant who is adjudged to have no interest in the premises, or to oi-e whose sole interest is an inchoate dower right in the share of one of the parties.
    Appeal from that part of an order contained in the final judgment which awards and fixes the amount of allowances to the several parties to the action, in addition to costs, the action having been brought for the construction of a will and for partition.
    
      Fettretch, Silkman & Seybel (Theodore H. Silkman, of counsel), for app’lts; George Bliss, for resp’t.
   Barrett, J.

We do not agree with the appellants in their first contention, that the value of the plaintiff’s interest is the sole subject-matter here involved. This is an action for the partition of real estate, and the property sought to be partitioned is the subject-matter involved, within the meaning of § 3253 of the Code of Civil Procedure. The question is not affected by the fact that the partition follows a successful attack upon a will. ^ It is still an action for the partition of real estate. In such an action the plaintiff does not, as in ejectment, seek to recover his interest from the defendants. The parties are tenants in common, and the action is necessarily in the interest and for the benefit of all such tenants in common. The plaintiff, in his complaint, prays that the interests of all parties, plaintiff and defendant, may bo settled and determined by the- court, and that an actual partition in accordance with such determination may be made, according to law and the practice of the court. In case such actual partition cannot be made without material injury, then the plaintiff further prays that the property may be sold, and the proceeds divided among the parties to the action according to their respective rights and interests. In the cases cited by the appellants, Struthers v. Pearce, 51 N. Y., 365; Adams v. Arkenburgh, 106 id., 615; 11 St. Rep., 121; Weaver v. Ely, 83 N. Y., 89; Abell v. Bradner, 39 St. Rep., 5, the plaintiffs sought no judgment for the benefit of the defendants, or in their interest, but demanded rights which were withheld from them by the defendants. Even in Adams v. Arkenburgh, supra, which was an action for the dissolution of a partnership and an accounting, the plaintiff in his complaint demanded from the defendant, who, it was averred, had appropriated joint funds of the partnership, and had possession of what were claimed to be assets of the firm, his one-half share of all “ the property, securities and money mentioned as the assets of the partnership.” See opinion of Danforth, J., page 618, 106 N. Y.; 11 St. Rep., 122. The action was, therefore, for the recovery from the defendant of this one-half share, and the court held that such one-half share was the subject-matter involved in the action. The same distinction will be found in the other cases cited by the appellants. The view contended for, if sustained, would lead to great practical inconvenience, for we know that these cases frequently involve a great deal of work and responsibility, and that the plaintiff’s attorney has the laboring oar, very much for the benefit of all concerned. The action is exceptional in the particulars pointed out, and, we think, the legislature intended by the language used in § 3253 to make special provision for just such a case.

We agree, however, with the appellants in their second contention, namely, that the court cannot allow to the parties in the aggregate more than five per centum upon the whole value of the property sought to be partitioned. Section 3253, as it bears upon this question, reads as follows : “ In an action * * * for the partition of real property * * * the court may also, in its discretion, award to any party * * * a sum- not exceeding five per centum upon * * * the value of the subject-matter involved.” Clearly, the words “any party,” as here used, do not mean “ each party;” otherwise the court might, if there were twenty parties, allow 100 per centum. The object was to give the court discretion as to the proper distribution of whatever allowance should be granted within the limit fixed. But such limit was to be five per centum upon the value of the property. It was so held in Fraser v. Trustees, 33 St. Rep., 347, and we concur in the conclusion there arrived at.

Our construction is not in conflict with the views expressed in Weed v. Paine, 31 Hun, 10. It was there held that the restriction in amount contained in § 3254 applied only to each side of the litigation, and that, consequently, the court had power in a proper case to award $4,000 in the aggregate. This is entirely consistent with a primary limitation of five per centum upon the subject matter involved in the action. Undoubtedly what the court meant was that, where the value of the subject matter equalled or exceeded $80,000, the court had power to award $2,000 to each side.

We also think that allowance should not have been granted to the plaintiffs wife, nor to the guardian ad litem of his infant daughter, nor to the plaintiffs mortgagee. The appellants have a right to complain of the reduction of the fund in this manner. The plaintiff’s wife had merely an inchoate right of dower in the plaintiff’s one-seventh part, for which she has been allowed by the decree $123. Her costs, together with the allowance complained of, amount to $156.24.

The allowance to the guardian ad litem was entirely unauthorized. He was entitled out of the estate to his taxable costs, and to no more. It was expressly adjudged that this infant had no interest whatever in the estate. Her interest under the will was taken by her father through this decree which he procured, and he certainly cannot charge upon his tenants in common the expenses of his daughter’s unsuccessful contest with himself. There is nothing in the case of Weed v. Paine, supra, which would justify the court in awarding to the guardian of this infant an extra allowance out of other people’s money. The court was there speaking of a case where the infant had an interest in the subject matter. Here she has no interest whatever in the estate, nor in the money realized upon the sale. Under such circumstances, the utmost that the guardian can be allowed out of the fund is his taxable costs. Insurance Company v. Van Rensselaer, 4 Paige, 87; Gott v. Cook, 7 id., 521; Downing v. Marshall, 37 N. Y., 391, 395; In re Holden, 126 id., 589; 38 St. Rep., 504. In the case first cited the chancellor said: “ If any extra allowance is made to the guardian ad litem, of the infants, it must be paid out of their share in the surplus, as nothing but the taxable costs can be charged upon that portion of the fund which belongs to other parties.” And in Gott v. Cook he again observed: “The infant children of Mrs. Kane having no vested interest in the estate,' there is nothing out of which any counsel fees for them can be allowed; and the court is not authorized to charge a fund, which may eventually all belong to others, with anything more than the taxable costs of their guardian ad litem.” ín Re Holden the court of appeals referred to the fact that the ward had only a contin-. gent and reversionary interest in the share of one of the beneficiaries. “This,” said Ruger, Ch. J., “gave them no present interest in the trust fund, and under the cases of Insurance Co. v. Van Rensselaer, 4 Paige, 87, and Downing v. Marshall, supra, an allowance to their guardian could be made only out of the shares of the infants.” In arriving at the value of the subject-matter involved in the action, the rents collected by the receiver pendente lite should not be added to the amount realized from the sale of the property. Neither the interlocutory nor the final judgment makes any provision with regard to these rents. Their collection was pursuant to a provisional remedy, and was a mere incident to the partition. The subject-matter of the action proper' was the real estate sought to be partitioned; and its value, or the proceeds of the sale, was the value of such subject-matter.

The judgment appealed from should, therefore, be reversed, so far as it awards extra allowances to the several parties to the action, with ten dollars costs and disbursements to the appellants, payable out of the fund, and without prejudice to a fresh application at special term, upon the principles stated in this opinion.

O'Brien, J., concurs._  