
    Charles S. Weston, App’lt, v. Mary R. Stoddard, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 8, 1891.)
    
    Partition—Costs.
    Costs in an action of partition are in the discretion of the court. The fact that an issue of fact in the action is triable by jury does not bring the action within § 3228 subd. 1 of the Code.
    Appeal from so much of an order as allows costs to the defendant Stoddard in an action of partition.
    The following is the opinion at special term on granting the order.
   Kellogg, J.

This is an action for partition. Actual partition of the property described in the complaint was directed, and has been made by the commissioners. The total value of the property is conceded to be $10,000. The complaint alleges that Mary R. Stoddard is the owner of three-fourths. The complaint also alleges that there are no incumbrances or liens of any nature upon the property. The defendant, Mary R. Stoddard, served an answer claiming, among other things, that she was the owner of a mortgage for $1,000 given in 1855 upon the other one-fourth interest as the purchase-money of the same. It is clear that she was called upon by the allegation in the complaint above mentioned to make this defense in order to protect her lien by way of mortgage upon this one-fourth interest. The findings of the special term are to the effect that this mortgage was given as alleged in the answer and no part of it has been paid. As to the issue raised by the reply to that portion of this defendant’s answer; namely, that the said mortgage was invalid by reason of the statute of limitations, or was a stale mortgage, the court declined to determine, leaving the owner of said mortgage unprejudiced by this partition to make her claim for payment in the ordinary way by foreclosure.

Winsor B. French, for app’lt; Charles S. Lester, for resp’t.

In so far as this part of the answer of Mary E. Stoddard is concerned, she has prevailed in the action. As to the other portions of her answer she has failed. It would seem proper that in the determination as to costs she should be entitled to the usual costs for having succeeded upon a single separate count in her answer.

The plaintiff in this case has succeeded, however, upon all ■other issues raised by the answer, and has been put to unnecessary expense in making his proof and establishing his claim as alleged in the complaint to the one-fourth of this property. Such ■expense was necessarily large before the trial justice; and, appeal having been taken therefrom to the general term, it would seem that the question had been contested unreasonably by the defendant, Mary E. Stoddard, having once before been decided by the general term in this district. I have come to the conclusion, therefore, that the plaintiff is entitled to full costs as in partition cases, for the trial before Justice Putnam, and that his costs and disbursements should be taxed as provided by the Code by the clerk of the county of Saratoga; and that in addition to the costs so taxed, the plaintiff is entitled to an additional allowance of two percent on the value of the property; namely, $10,000; and that the costs so taxed, together. with the said additional allowance, be paid, three-fourths by the said Mary B. Stoddard, and one-fourth by the owners of the remaining one-fourth as fixed by the trial court; that the same be a lien on the property so allotted in the said proportions. Also that the plaintiff shall be entitled to his costs and disbursements ■on the appeal to the general term; that the same be taxed by the said clerk, and shall be paid by the defendant, Mary E. Stoddard, •and'-shall be a lien upon the portion allotted to her, and that plaintiff shall have an additional allowance of five per cent, on the one-fourth, namely, $2,500, being the value of the property in dispute ; and that such five per cent, be also chargeable upon the said interest of Mary E Stoddard, and shall be paid by her and be a lien upon the property allotted to her.

I have further determined that the defendant, Mary E. Stoddard, is entitled to her costs of the trial before Justice Putnam, to be taxed by the clerk of the said county, and that as an additional allowance there should be paid to her two per cent, on the value of the said interest involved, to wit, $2,500, and the same be chargeable against the owners of the said one-fourth interest in the said property and shall be paid by them, and at the election of the said Mary E. Stoddard the same may be offset against any costs herein allowed against her.

Learned, P. J.

The action of partition has long been an -equitable remedy. 1 Story’s Eq., § 646, and subsequent sections. There was also a special proceeding provided for by the Eevised Statutes, which might be taken in courts of law. But that left, in express language, the jurisdiction of the court of chancery unaffected.

Such an action is not within § 968 or § 3228. It is governed, by § 3230 and costs -are in the discretion of the court. An issue of fact in the action is triable by a jury. Section 1544. But that, does not determine that the action is so triable or bring the action within § 3228, subdivision 1.

The right to award costs to plaintiff and to defendant was recognized in Henderson v. Scott, 43 Hun, 22, and this must overcome the special term decision of Davis v. Davis, 3 St. Rep., 163.

We think, therefore, that the matter was in the discretion of the special term. And there is no question that the discretion was not properly exercised.

Order affirmed, with ten dollars costs and printing disbursements.

Math AM, J., concurs.  