
    Asenath M. Cross, Plaintiff, v. Isabella Birch et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    April, 1899.)
    Partition — Default in pleading — Joint tenant may sue.
    An application, in partition, by a defendant to open her default in pleading will be denied where she has filed no sufficient affidavit of merits, nor will she be allowed to plead in order that she may set up a joint tenancy as a defense, as partition is maintainable by a joint tenant.
    
      This is an action for partition and- a motion is made by the defendant Birch to have her default in pleading herein opened.
    M. F. Dillon, for motion.
    O. R. Milford, opposed.
   Hiscock, J.

This motion must be denied. In the first place no sufficient affidavit of merits has been presented with the papers. In the second place, the question which, as I understand it, the defendant desires- to raise in the case, would not present a good defense. It has been held by the interlocutory judgment that the plaintiff and defendants were tenants in common. 'The defendant Birch claims that they were joint tenants. Even if this is so, plaintiff was entitled to bring her action for partition. § 1582, Code.

If a- sale being had defendant Birch was entitled to a different, disposition of the proceeds upon the theory of a joint tenancy from that now provided upon the theory of a tenancy in common, this -might be a proper basis for an application to' the court to have that question further considered.

. The motion is denied, with $10 costs.

Motion denied, with $10 costs.  