
    Charles B. Clark, Plaintiff, v. Bernard H. Clark et al., Defendants.
    Supreme Court, Special Term, New York County,
    March 15, 1956.
    
      Hugo F. Ricca, Jr., for Bernard H. Clark and another, defendants.
    
      John P. Crilly for plaintiff.
   Irving L. Levey, J.

This motion pursuant to rule 106 of the Rules of Civil Practice to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action is denied. It is claimed that under section 1013 of the Civil Practice Act it is necessary that where several tracts or parcels of land lying within this State are owned by the same persons in common, the action for the partition must be brought for all the property owned in common. Section 1013 of the Civil Practice Act was derived from General Rule of Practice No. 65. As stated in Pritchard v. Dratt (32 Hun 417, 418): “ ‘ It was not the purpose of the rule to establish a rule of pleading, or to deny a partition in any case if all the lands owned by the parties, as tenants in common, were not made the subject of partition in the pending suit. If such was the aim of the rule then the court was without power to make it, for the reason that it exacts as a condition to granting relief that which the statute does not demand. The object of the rule is to protect parties from the burden and annoyance of a multiplicity of suits when they are tenants in common of several tracts or parcels of land, lying within this State, and if an action should be brought by one of the tenants in common for a partition of a separate parcel he might be charged with all the costs of the suit unless the same was with the consent of the other parties in interest * * ”  