
    (71 Misc. Rep. 282.)
    MOORE v. HATFIELD et al.
    (Nassau County Court.
    March, 1911.)
    1. Partition (§ 77)—Division of Property.
    Under Code Civ. Proe. § 1546, the court must order an actual partition of so much of the property as can be divided without great prejudice.
    [Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 211-223; Dec. Dig. § 77.]
    2. Partition (§ 95)—-Dower Interest—Provision in Final Judgment.
    A dower interest in a share of an infant in real estate may be provided for in the final judgment if the dowress does not consent to accept the sum in gross.
    [Ed. Note.—For other cases, see Partition, Dec. Dig. § 95.]
    3. Partition (§ 78)—Sale.
    Where, on motion of a guardian ad litem of an infant defendant to confirm the report of the referee, to which finding the plaintiff had filed an exception, it was conceded that the plan of partition and sale proposed by plaintiff would be more advantageous than the one proposed by the referee’s report, the plan proposed by the plaintiff will be adopted, and an interlocutory judgment directing such sale will be granted.
    [Ed. Note.—For other cases, see Partition, Dec. Dig. § 78.]
    Action by Jennie K. Moore against William A. Hatfield and others.
    Interlocutory judgment for plaintiff.
    Monfort & Faber, for plaintiff.
    William H. E, Jay, guardian ad litem, for defendant Murtagh.
    John Lyon, for defendants Hatfield.
    Benjamin E. Valentine, in pro. per.
    William S. Pettit, guardian ad litem, for Huston.
    
      
      For other cases see'same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   NIEMANN, J.

Motion for interlocutory judgment, in an action for partition, upon the report of a referee to take proof of title, etc. The referee has reported that, in his opinion, the greater portion of the premises designated in the complaint is so circumstanced that actual partition thereof can be had without great prejudice to the owners, and that the remaining portion should be sold. An exception to this finding has been filed by the plaintiff. The guardian ad litem for the defendant John B. Murtagh moves to confirm said report.

The premises in question consist of about one acre of land, situate on the corner of Broadway and Irving avenue, Woodmere, N. Y. A map showing the plan of division of the property, under which a part would be actually partitioned and a part sold, was put in evidence before the referee, and upon the argument" of this motion another survey, showing a different plan of actual partition of a part and a sale of the rest, was, by consent of all parties, submitted to the court. The fee of the property is held by four persons, each owning one-fourth, to wit: Jennie K. Moore (plaintiff); William A. Hatfield (defendant, and an infant under 14 years of age, whose interest is subject to the dower right of his mother, Frances B. Hatfield) ; John B. Murtagh (defendant) ; and Benjamin E. Valentine (defendant).

It is claimed by the plaintiff and the infant defendant, William A. Hatfield, through his guardian ad litem, that the property is so circumstanced that a partition cannot be made without great prejudice to the owners. On the other hand, the defendants Benjamin E. Valentine and John B. Murtagh insist that an actual partition of a portion can be had and that there should be a sale of the remaining portion. The reasons urged by those in favor of a partial partition and sale are: (1) That the most valuable portions—the two corners on Broadway—are so circumstanced that an actual partition thereof cannot be made, and a sale thereof would' be for the best interests of all the cotenants, as there are no mortgages on the property and the proceeds of the sale of these corners would produce a very considerable sum in cash to be divided among the cotenants; and (2) that the remaining part is easily susceptible of division into lots, according to either of the plans submitted, and by this arrangement each one of the owners would receive separate and distinct village lots which they could hold at their pleasure. On the other hand, the reasons advanced by the plaintiff for a sale are that an actual partition and a sale would practically double the expenses, by necessitating the payment of commissioners’ fees in addition to the expenses incident to a sale, and that, as the defendant Frances B. Hatfield is entitled to dower in an undivided one-fourth of the property, a sale of the entire property might obviate the necessity of a separate proceeding for the ad-measurement of her dower at some future time. In addition to the reasons urged by the plaintiff, the guardian ad litem for the defendant William A. Hatfield claims that, as said defendant is only fivé or six years of age and has no income, he would not be able to carry the property which would be apportioned to him, and that an infancy proceeding would have to be instituted to sell the part allotted to him, which would impose upon him an additional expense.

I have given all these conflicting views careful consideration. It is always difficult—where the situation of the parties differs as to their ability or desire to hold a portion of the property for future increase in value, and where as to some the use of ready money is preferable to an allotment of a portion of the property—to make a disposition which will satisfactorily meet the particular exigencies of the relative situation of each to the matter in controversy. The reasons urged by the plaintiff, based upon the extra expenses, would not seem to me to be sufficiently grave to affect the-matter.

The matter of the dower interest of Mrs. Hatfield in the share of her infant child can in case she does not file a consent to accept a sum in gross be disposed of and provided for in the final judgment to be entered in this action. Code Civ. Proc. § 1569. The objection urged by the guardian ad litem for the infant, which is of a two-fold nature, namely, that the infant would not have the means to keep up the property, that is, pay the taxes, etc., on the lots alloted to him, and that the infant might be subjected to the expense of an infancy proceeding to dispose of the lots assigned to him, is sufficiently answered, in my judgment, by the fact that the infant (assuming that he has no other means whatever) will have his share of the money realized out of the proceeds of the sale of the valuable business corners; and the remaining objection, that an infancy proceeding may have to be taken, is, in my opinion, sufficiently offset by the following consideration: If there is a sale, the infant will not be able to compete with his adult co-owners for the purchase of the lots, and in the present unfavorable state of - the real estate market—of which the court may take judicial notice and should consider in determining the best course to be taken (Porter v. Waring, 2 Abb. N. C. 230, 235; Walter v. Walter, 3 Abb. N. C. 12, 16)—the interests of the infant in these valuable village lots, if there is a sale now, may be sacrificed. On the other hand, if his fair proportion of said lots is assigned to said infant, they may, and in my opinion actually will, because of the great developments which in all probability will take place in that section in the near future, become greatly enhanced in market value in a few years. Should it become necessary hereafter to dispose of the lots assigned to the infant, the small cost of the infancy proceeding—carefully guarded as it is as to expense by the statute—will be more than offset by the ample opportunity afforded to find a purchaser at private sale and thus to secure full value for the infant's property. This can be secured by carefully choosing the time and condition of the market.

But, aside from the foregoing considerations, the provisions of the statute must be considered. The Code of Civil Procedure (section 1546) requires the court to direct actual partition to be made where it is found by the verdict, report, or decision, or where it appears to the court, upon an application for judgment in favor of the plaintiff, that the property, or any part thereof, is so circumstanced that a partition thereof can be made without great prejudice to the owners. The question is not whether a sale might be more agreeable or even in some respects more advantageous to some of the parties. The statute makes a sale the secondary consideration.

The question first to be considered and adjudicated is, Can there be an actual partition? There is but one instance in which the court has a right to direct a sale, and that is where partition cannot be made without great prejudice to the owners. There is no evidence in this case, and nothing has been shown upon the hearing of this matter before me, that would justify me in ignoring the plain mandate of the statute to order an actual partition of as much of the property as can-be actually divided among the parties. That this is the proper course is shown by the following authorities: Clason v. Clason, 6 Paige, 541; affirmed, 18 Wend. 369; Smith v. Smith, 10 Paige, 470; Haywood v. Judson, 4 Barb. 228, 231; Walter v. Walter, 3 Abb. N. C. 12; Stephenson v. Cotter, 5 N. Y. Supp. 749; Chittenden v. Gates, 18 App. Div. 169, 173, 174, 45 N. Y. Supp. 768; Smith v. Trustees, etc., of Brookhaven, 36 App. Div. 386, 55 N. Y. Supp. 370. This only leaves the question as to which of the two plans of partition and sale should be adopted. The parties are all agreed that there should be a sale of the corner property, and the question only remains as to whether the plan of division proposed by the defendant Valentine or that proposed by the plaintiff’s counsel, as shown on their respective diagrams submitted by them, should be adopted. Upon the argument of this motion, it was practically conceded by all the parties that the plan proposed by the plaintiff would be more advantageous than the plan proposed in the referee’s report and shown on the defendant Valentine’s survey. A consideration of both plans has inclined me to favor the plan proposed by the plaintiff, and I think that plan should be adopted.

The exception filed to the referee’s report should be overruled and said report confirmed. Commissioners should be appointed to make the partition, and a referee to make the sale, according to the rules and practice of this court. An interlocutory judgment in favor of the plaintiff, directing such partition and sale, may be prepared and submitted for settlement before me on five days’ notice to all parties who have appeared in this action. The question of costs and allowances will be reserved until the coming in of the report of such commissioners and the report of sale of the referee, and will be disposed of on the motion for final confirmation of said referee’s report.

Judgment accordingly.  