
    Charles J. Schmitt, Plaintiff, v. John Weber et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1908.)
    Partition — Sale and proceedings thereafter — Power of court to fix minimum price.
    The court has no power arbitrarily to fix a minimum price at which the property owned in common shall be sold at auction under a judgment of partition without the consent of all parties.
    Motion for distribution of proceeds of sale in an action for partition.
    Eustis & Poster, for plaintiff.
    Simpson, Werner & Cardoza, for defendants.
   Bischoff, 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 he sold at auction without the consent of all. The right to the distribution of the proceeds of sale, where actual partition is not directed, 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.

Ordered accordingly.  