
    (60 Misc. Rep. 361.)
    SCHMITT v. WEBER et al.
    (Supreme Court, Special Term, New York County.
    August, 1908.)
    Partition (§ 100)—Order of Sale.
    On judgment of partition and order of sale, the court, without consent of the parties, cannot fix a minimum sum at which the property shall be sold at auction.
    [Ed. Note.—For other cases, see Partition, Dec. Dig. § 100.*]
    Action by Charles J. Schmitt against John Weber and others for partition. On motion for distribution of proceeds of sale.
    Granted.
    Eustis & Foster, for plaintiff.
    Simpson, Werner & Cardoza, for defendants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Ttep’r Indexes
    
   BISCHOFE, J.

The court has no power arbitrarily to fix a minimum price at which the property owned in common by the parties to the action shall be sold at auction without the consent of all. The right to the distribution of the proceeds of sale, where actual partition is not directe'd, is incidental to the ownership of the property, and the statute does not, directly or by inference, confer power on the court to restrict the sale to a certain price. The market price is to be measured by what is bid for the property at public sale, upon due notice, and if the court should adopt the value placed upon it by one or any of the parties as a minimum price the distribution might well be delayed for an indefinite number of years.

The motion will be granted so far as to permit the parties in interest to become purchasers at the sale and to have their shares applied upon the purchase price; otherwise, denied.  