
    Alexander W. Clapp, Appellant, v. Catherine Hunter, Respondent, Impleaded with Nelly V. B. Clapp and Others, Appellants, and Others, Defendants.
    
      Hosts in a partition suit — not to exceed the value of the property partitioned after deducting an allowance for improvements-^ no allowance for water rates or insuraúce—on what money expended interest is allowable.
    
    ln-an action of partition, -in which a defendant who holds title to two undivided • seventh parts of the property in question is granted an allowance for permanent improvements made by such defendant and her predecessor in title, the costs awarded to the several parties should not exceed ■ the value of the property after deducting the allowance for the improvements.
    Such defendant is not entitled to an allowance-for expenditures made by her for water rates or insurance upon the property.
    In allowing such defendant interest on the amount invested by her, as an offset to the value of her exclusive use of the property, such interest should be computed upon the amount paid by her for the improvements upon the land as distinguished from that paid for the land itself.
    Appeal by the plaintiff, Alexander W. Clapp, and by the defendants, Nelly V. B. Clapp and others, from a final judgment of the Supreme Court in favor of the defendant Catherine Hunter, entered in the office of the clerk of the coiinty of Westchester on the 1st day. of April, .1899, upon the report of -a referee,- with notice of an intention to bring up for review upon sucli appeal an interlocutory judgment entered in said clerk’s office on the 10th day of January, 1899. ''
    
      Richard V. Boyd and Henry W. Beebe, for the appellants.
    
      Wilson Brown, Jr., for the respondent Catherine Hunter.
   Willard Bartlett, J.:

This is a partition suit involving some of the lands which were the subject' of the erroneous foreclosure considered in Clapp v. McCabe (155 N. Y. 525); Clapp v. Byrnes (Id. 535), and Clapp v. Nichols (31 App. Div. 531). The respondent Catherine Hunter occupies a position similar to that of the defendant Mary A. Nichols .in the case last cited. During the occupancy of the premises by her and her predecessor in title improvements were made thereon which have greatly enhanced the value of the property as a whole, and she claims an allowance for the cost of these improvements under, the exception sanctioned by the Court of Appeals in Ford v. Knapp (102 N. Y. 135), and applied by the Appellate Division in the fourth department in the case of Jones v. Duerk (25 App. Div. 551), as well as by this court in the Nichols case,

The court at Special Term adjudged the respondent to be the owner of two-sevenths of the property to be partitioned, and then made certain allowances to her on account of'the building and other-permanent improvements. The court evidently attempted to compute these allowances in accordance with the views that we expressed in the Nichols case, but this attempt was not wholly successful. .

The property sold for $5,000. The value of the premises without, the improvements was adjudged to be $1,200. The costs awarded in the judgment to the various parties amounted to more than' this-sum, being $1,527.62 in all. The judgment directs that the costs-shall be charged against this amount of $1,200, representing the value of the premises without the improvements. As it will not suffice to pay the costs in full, the respondent is required to make up the difference, and the balance of the purchase price of $5,000, for which the property was sold, is awarded to her as compensation for the permanent improvements. The result- is that, leaving, the improvements out of consideration, the fund to be distributed in the-partition suit is less than the costs, and the tenants in partition other than the respondent are worse off than if the property had not been sold at all.

It is obvious that the award of costs would not have been so generous if the court had clearly perceived that the fund for distribution, instead of being $5,000, was really only such part of $5,000 as should remain after the value of the permanent improvements on the land had been deducted therefrom. It is not reasonable to suppose that costs in excess of $1,500 would have been awarded for the services performed in a partition- suit where the property to be divided was worth only $1,200. In view of the facts of the case in this respect, we think that the costs should be so reduced as not to exceed one-third of the amount allowed in the judgment.

Wé are unable to perceive that any error was committed in fixing the extent of .the respondent’s interest- in the property to be partitioned, or in ascertaining the separate values of such jrroperty and the improvements thereon. In some respects, however, the judgment allows the respondent more than she is entitled to receive under our decision in the Nichols case, and in these respects it must be modified.

It was error to allow the respondent anything on account of water rates, for which she is credited with a payment of $388. It is impossible to perceive how this expenditure could in any way have added to the salable value of the property.

The item of $290 paid for insurance was also improperly allowed. There is nothing in the record to show that this payment can have been of any possible benefit to the respondent’s cotenants. Hence she is not entitled to charge it against them. (Ford v. Knapp, supra.)

In calculating the value of the respondent’s exclusive use and occupation of those portions of the property which belonged to the other owners, the court below deducted from the’ rents actually received, which aggregated $3,318, the sum of $2,241.25, which is stated to be interest on the respondent’s money invested for the benefit of all, in order to obtain the rents. This item of interest appears to be computed upon $5,500, which was the purchase price of the property when the respondent acquired it. That $5,500, however, necessarily embraced the land as well as the improvements; but she was entitled to interest only upon' that portion which was paid by her for the improvements as distinguished from the land itself. At most, the value of these did not exceed $4,500, so that she seems to have been allowed interest on at least $1,000 too much.

The judgment appealed from must be modified in accordance with the views expressed in this opinion. As these corrections will necessarily involve changes in other parts of the judgment, dependent upon the portions directed to be modified, the judgment will be ' remitted to the court at Special Term, where the requisite, alterations can more conveniently be made under the direction of the trial judge..

All concurred.

Case remitted to the Special Term for modification of the judgment in accordance with the opinion of Bartlett, J. No costs of this appeal to any party.  