
    SUPREME COURT.
    Porter agt. Lee.
    IN PARTITION.
    
      Erie Special Term, April 1852.
    This was an action for partition of lands commenced by service of summons and complaint on the defendant, who was of age and a resident. He had appeared by attorney but had not answered or demurred to the complaint. Lee was the sole defendant in the action.
    C. D. Norton,
    on affidavit showing these facts, and on notice moved for the appointment of commissioners.
    Mr. Colegrove,
    for the defendant, said that the defendant admitted all the allegations of the complaint, and that the same set forth correctly the rights and interests of the parties to the action, and he was willing that commissioners should be appointed if the court should decide that practice to be correct.
   Hoyt, Justice

after examining the papers said on a subsequent day in term, that if judgment was to be taken by default, there must be a refer'ence to the clerk to take proof of the title and rights of the parties before the appointment of commissioners.  