
    (28 Misc. Rep. 304.)
    BENDER et al. v. VAN ALLEN et al.
    (Supreme Court, Special Term, St. Lawrence County.
    July, 1899.)
    1. Partition—Pleading.
    In an action for partition, an allegation that plaintiffs and defendants are the sole heirs at law and next of kin of the deceased is sufficient, and it is unnecessary to allege specifically that deceased had no living father or mother.
    2. Same—Joinder of Tenant by Curtesy in Action of Partition.
    In an action by heirs to realty for partition, the husband of the deceased, claiming as tenant by curtesy, may be joined, and a judgment obtained determining the title.
    3. Same—Bill of Particulars.
    Where one of the defendants in partition, claiming as tenant by curtesy, sets up the fact that an heir had been born, thus entitling defendant to such tenancy, which fact was unknown to plaintiffs, plaintiffs are entitled to a bill of particulars setting up in detail the particulars of the birth.
    4. Same—Appointment of Receiver.
    In partition, where one of the defendants claims as tenant by curtesy, plaintiffs are not entitled to a receiver, since, if this claim is established, none of the heirs are entitled to possession during the life of the tenant, and such appointment would amount to a determination of his rights by an interlocutory order.
    Action for partition by Charles H. Bender and another against Margaret A. Van Allen and others. Motion by defendants for a bill of particulars and for the appointment of a receiver.
    Granted as to the bill of particulars, and denied as to the receiver.
    Scherer & Downs, for plaintiffs.
    A. J. Nellis, for defendant Terwilliger.
   BUSSELL, J.

The objections to serving a bill of particulars by the defendant Terwilliger are more technical than meritorious. The plaintiffs bring the action for partition, claiming as brother and brother’s wife of the intestate against the sister and nephew, and have joined the surviving husband of the intestate, he occupying the lands of which the intestate died seised. This husband denies in his answer that the brother, sister, and nephew are the sole heirs and next of kin of the deceased; denies, also, that no issue was born of the marriage of said defendant with the deceased; and affirmatively alleges “that there was a child born alive of said marriage.” This allegation gives the sum total of information to the brother, sister, and nephew of that of which none of them were aware, viz. that there was a child born, which, if living now, would inherit solely, and which birth gave, in any event, a tenancy by the curtesy to the surviving husband. This husband declines to furnish any particulars as to the birth of this child, and resists the application for one, not alone on the general ground that this is not a case for a bill of particulars, but also on the theory that the action cannot be maintained, and that the court should so decide upon the motion in question.

The first objection to the complaint is that there is no allegation that the deceased left no father or mother him surviving. The allegations of the complaint, after stating the relationships, aver that the brother, sister, and nephew are the sole heirs at law and next of kin of the deceased. This statement is not simply a conclusion of law, but is an averment of fact, for the purposes of this motion.

The second objection is that this action cannot be maintained against the husband, he holding adversely. It would seem to be unnecessary circumlocution to require the heirs to maintain an action of ejectment against the husband, and await the determination of that proceeding before they could maintain an action of partition, requiring two litigations when one would accomplish all that is needed. hTor is this the law. The tendency of later legislation and rulings of courts is to free the action of partition from all unnecessary limitations. A tenant by the curtesy may be joined in order to make a judgment which shall give a clean title. Code Civ. Proc. § 1539. It will hardly answer to say that the plaintiffs must concede the tenancy by the curtesy to be perfect, in order to join the husband, where he is in occupation claiming to be such tenant. A disseised co-tenant may maintain partition, and all questions of titles may be tried. Weston v. Stoddard, 137 N. Y. 119, 33 N. E. 62.

On general grounds, there never was a more patent use for a bill of particulars than in the present case. The birth of a child which so changed family relations would, except under extraordinary circumstances, be well known to the brother and sister of the deceased; and ordinarily the surviving husband would, as soon as he perceived their ignorance in that respect, very promptly have advised such near relatives of his deceased wife of the circumstances attending such birth. And now, to let the husband lie by, and surprise the brother and sister upon the trial with proof of birth at some time or place as to which they have had no previous notice, would be to nullify the beneficial use of a bill of particulars. It has been required in a case of crim. con. (Tilton v. Beecher, 59 N. Y. 176), and in a dower case, where the parties were ignorant of the circumstances of the marriage (Govin v. De Miranda, 87 Hun, 227, 33 N. Y. Supp. 753). I am therefore impressed with the conviction that there is no valid objection to a bill of particulars, and the defendant presents no affidavit in any manner stating any difficulty in the wray of furnishing one.

The motion for a receiver, however, stands upon a different basis. The brother, sister, and nephew are not entitled to possession if Terwilliger has the right of curtesy: It will not answer to anticipate a short time before trial can be had, and determine in advance that he is not entitled to possession by interlocutory order. The motion, therefore, for a receiver, is denied, with costs to abide the event, and the motion for a bill of particulars is granted, with like costs; the order to contain not only the information desired as to the birth of the child, but the account of the defendant’s claim against the deceased wife. If the bill of particulars already furnished in that respect is sufficient, the order may so recite. Ordered accordingly.  