
    Margarita Story, Plaintiff, v. Theodore L. Lutkins et al., Defendants.
    (Supreme Court, Kings Special Term for Motions,
    May, 1912.)
    Partition — mode of partition — actual partition — costs and expenses.
    In a case of actual partition defendant, as well as plaintiff, may be awarded costs, and an additional allowance.
    All taxable costs and allowances are to be deducted from rent and income of the property before the division thereof between plaintiff and defendant, that is, each must pay his proportionate share of the costs, allowances and disbursements.
    Action for partition; motion for an additional allowance.
    William B. Hurd, Jr., for plaintiff.
    George Tiffany, for guardian ad litem.
    
    Harry S. Stewart, for defendant Theodore Lutkins.
    
      £>. M. & D. E. Meeker, for defendant Willi amsburgh Savings Bank.
    McKeen, Brewster & Morgan, for defendant Eranldin Trust Company.
   Crane, J.

This question arises over the costs and allowances and the payment thereof in a case of actual partition. The property affected by this suit has been divided equally between the plaintiff and the defendant by an actual partition thereof, and the plaintiff’s counsel now asks for an additional allowance and that one-half thereof be made a lien upon the defendant’s property. He, however, opposes the application of the defendant for an additional allowance, and that it be made a lien upon the plaintiff’s property. He insists that if the defendant be made an allowance it must be payable out of the defendant’s property.

That the defendant may obtain costs and allowance as well as the plaintiff, is decided in Warren v. Warren, 203 N. Y. 250. That a iive-per cent, allowance for a defendant is to be figured upon the value of the defendant’s interest is not to say that it must be paid solely out of the defendant’s interest. 'See also Crossman v. Wyckoff, 64 App. Div. 554, 557.

The practice in cases of this kind has been stated in Tibbits v. Tibbits, 7 Page, 204, where the chancellor decided in a case of actual partition that the costs of the complainant and of all the defendants who had appeared in the cause were to be taxed, as between party and party, and the aggregate amount of the several bills of costs as taxed was then to be apportioned between the complainant and the other parties, according to their respective rights and interests in the premises as ascertained and settled by the decree; and that the final decree should also direct that the several parties entitled to such costs have execution therefor, according to the course and practice of the court in such cases; to wit: that the several parties whose taxed bills of costs and expenses should exceed the amount of their respective ratable proportions of the whole costs in the suit, should have execution for such excess against the other parties respectively, for the amount which the several taxed bills of such other parties were less than the amount of their several proportions of the whole costs in the suit.”

The chancellor also allowed the guardians to he paid their ratable proportions out of the rents and profits.

I shall allow the plaintiff an extra allowance of $1,000, the defendant an extra allowance of $500, which, according to this rule of the chancellor, means that thei plaintiff’s share shall be charged with $750 and the defendant’s share with $750 or, in other words, that the defendant’s share shall contribute $250 to the plaintiff’s allowance.

But this rule also applies to all of the taxable costs and allowances. The aggregate sum thereof must he divided equally between the plaintiff and the defendant, and the decree herein must so provide.' This is in accordance with the rule which is applied under section 1579 of the Code of Civil Procedure when there has been an actual sale of the property; the costs and expenses"are first deducted before there is a division among the parties, which is the same thing as compelling each party to pay his proportionate share of the costs, allowances and disbursements. The decree herein may provide that the rents and income from the infant defendant’s property he applied to the payment of one-half of this total of all costs, allowances and disbursements.

Ordered accordingly.  