
    Eliza Fairweather, Appellant, v. Catherine Hall Burling, Respondent.
    
      Partition — right of an infant who has raised an issue as to the plaintiff’s ownership to a trial 6y jury.
    
    Where the sole defendant in an action to partition real property is an infant, who interposes an answer putting in issue the allegation of the complaint that the plaintiff is the owner of an interest in the premises sought to be partitioned, the court has no power, over the plaintiffs objection, to make an order referring the action to a referee to take proof of the title and interests of the respective parties for the reason that, under section 1544 of the Code of Civil Procedure, a jury trial of issues of fact joined in a partition action is a matter of right.
    Section 1545 of the Code of Civil Procedure which provides, “ Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares and interests of the several parties in the property by a reference or otherwise, before interlocutory judgment is rendered in the action,” is not authority for the granting of a reference in such a case.
    The meaning of section 1545 is that where no issues are raised the court must ascertain the rights, shares and interests of the several parties in the property, where a party is an infant, by a reference or otherwise, before interlocutory judgment is rendered, and that the same facts must be ascertained in the same manner where the defendant has made default in appearing or pleading.
    Appeal by the plaintiff, Eliza Fairweather, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of May, 1904, granting the defendant’s motion for a reference.
    
      Francis B. Mullin, for the appellant.
    
      F. DeLysle Smith, for the respondent.
   Hooker, J. :

This is an ordinary action of partition. The defendant is an infant and puts in issue the allegation of the complaint that the plaintiff is the owner of an interest in the premises described therein. The defendant moved at Special Term for a reference, and an order was granted referring the action to a referee to take proof of the title and interests of the respective parties, and of the counterclaim contained in the answer; and to ascertain and report who are the persons entitled to the premises. The order generally directed the reference to proceed in conformity with the usual practice of references in actions of partition, where the parties are absentees, infants, or where defendant has made default in appearing or pleading. The plaintiff has appealed from the order of the learned Special Term, and we are persuaded that her appeal should prevail.

Section 1544 of the Code of Civil Procedure provides in terms that an issue of fact raised in a partition action is triable by a jury, and it is held that by reason of this provision a trial by jury of issues of fact joined in a partition action is a matter of right. (Southack v. Central Trust Co., 62 App. Div. 260 ; Jones v. Jones, 120 N. Y. 589.) The defendant seeks to sustain the order upon the force of the provisions of section 1545 of the Code of Civil Procedure, which reads as follows: “ Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares, and interests of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action.” At first blush it may appear as though the section was authority for the granting of such a motion over the objection of one of the parties, but it is not a reasonable construction of this section that the Legislature intended to allow infants to be deprived of the right of trial by jury, guaranteed by section 1544, or to compel other parties to forego that right upon the application of infant parties. The meaning of section 1545 is that where no issues are raised the court must ascertain the rights, shares and interests of the several parties in the property, where a party is an infant, by a reference or otherwise, before interlocutory judgment is rendered, and the same facts must be ascertained in the same manner where the .defendant has made default in appearing or pleading. Rule 66 of the General Rules of Practice, which has the force of statute (Code Civ. Proc. § 17), it is clear, was enacted in furtherance of the provisions of section 1545 of the' Code of Civil Procedure, and that rule provides that if any of the defendants are infants and the allegations of the complaint in respect to the rights and interests of the several parties are not denied or controverted, the Special Term may make an order of reference to take proof of the plaintiffs title and interest in the premises and of the several matters set forth in the complaint, and to ascertain and report the interests and rights of the several parties in the premises. The intent in enacting section 1545 of the Code of Civil Procedure was further to protect the rights of infants, of whose interests the court is always jealous, and to that end it is provided that the court, by one of its officers acting as referee, or otherwise, shall yet determine the rights of the parties where one of the parties is an infant, even though the pleadings raise no issue of fact. This is the only natural construction to be given to the section, and there being therein no language pointing to an intention of the Legislature to except these cases from the operation of the rule declared in section 1544 of said Code, that trial by jury is a matter of right, and there being no reason why, in the light of the practice of the courts and the rules of court, any such exception should be made, the interpretation must prevail that even where a party is an infant, trial by jury of issues raised in the pleadings is a matter of right and a reference for that purpose cannot be ordered over the objection of one of the parties.

Levine v. Goldsmith (71 App. Div. 204, 209) is not an authority to the contrary. In the course of the opinion it was said : “ In partition, an order of reference as to the rights, shares and interests of the several parties is only authorized where one of the parties is an infant or application is made for judgment on default, which is not this case. (Code. Civ. Proc. § 1545, and rule 66, General Rules of Practice.) ” The question presented on this appeal was not before the court in the Levine case, and the observation, which to our mind does not conflict with our views as to the interpretation of section 1545 of the Code of Civil Procedure, was in any event obiter. For aught that appears none of the parties in that case were infants; the parties saw fit to try the issues before the court, and the question here presented conld not, and did not, enter into the decision in that case.

The order should, therefore, be reversed, and the motion denied.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.  