
    Henry A. Coster et al., Resp'ts, v. Julia De Lancey Coster, Resp't, and Cornelia F. Coster, App'lt.
    
      (Supreme Court, General Term, Second Department, Filed
    
    
      December 12, 1892.)
    
    Partition—When sale will be decreed.
    In an action of partition of land owned by three parties, which consisted of two parcels, one of thirty-one acres, with buildings, and the other of eight acres, without buildings, it appeared that the parcels when separated would not sell to as good advantage as when sold together. Held, that in such case it was proper to decree a sale of the entire property, although one of the parties desired a parcel set oil to her to hold for an increase in value, especially where her interest is greater than the value of the smaller parcel, as in such case she can protect her interest by purchasing it at the sale.
    Appeal by defendant, Cornelia F. Coster, from judgment confirming the report of a referee in an action of partition. The following is the opinion of the referee so far as it relates to the question as to whether an actual partition or sale shall be had:
    L. H. Arnold, Jr., Referee.—This is a reference to inquire and report, among other things, whether the premises described in the complaint, or any part thereof, are so circumstanced that an actual partition thereof cannot be made without great prejudice to the owners thereof, and if the referee shall reach the conclusion that the sale of the whole premises or any part thereof will be necessary, that he specify the same in his report, together with ■ the reasons which render the sale necessary; also to take the account of the rents and profits of the real estate described in the complaint received by the plaintiff from the 15th day of April, 1891, to the date of the report, and determine how the same should be divided, etc.
    In considering the question whether the premises shall be partitioned or sold, all the facts and circumstances of the case should be considered, including those relating to the condition of the parties, the location and nature of the property, the market for it as a whole or in separate parcels, and the practicability of making an equitable actual partition. Odell v. Odell, 19 W. Dig., 13.
    And if it shall appear, under all the circumstances, that an actual partition cannot equitably or properly be made, and that it is for the interest of all the parties to have a sale of the property in such manner as to aggregate the largest amount possible; or if it shall appear that the whole property taken together will be greatly diminished in value if separated into three parts in the hands of three different persons, according to their several rights or interest in the whole; in other words, if the aggregate value of the several parts when held by different individuals in severalty would be materially less than the whole value of the property if owned by one person, then a sale should be ordered. Odell v. Odell, supra; Clason v. Clason, 6 Paige, 541.
    The premises in question are situated in Westchester county. The larger parcel is located on Throggs neck, and the smaller one is about an eighth of a mile distant. The former parcel is well known in that section as the Coster place, and has been for many years occupied by members of the Coster family as a country residence. It consists of about thirty-one acres. The house is located near the center of the plot, and in close proximity thereto are the outbuildings. The main entrance is from the Heck road. The place is bounded on the north by the Eastern boulevard and Hew road, and on the west by the Heck road; on the east and south by lands belonging to other parties.
    The smaller parcel is irregular in form. It is unimproved, and is entirely bounded by land owned by other parties, excepting only about thirty-five feet fronting on a lane. The only entrance to this plot is through this narrow space.
    One of the plaintiffs, Henry A. Coster, and the defendants, Julia De Lancey Coster and Cornelia F. Coster, are each seized in fee of an undivided third of the premises in question, as tenants in common. The other plaintiff, Mary L. Coster, is the wife of Henry A. Coster, and has an inchoate right of dower in her husband’s undivided share of the premises. All the parties are of full age, and all unite in asking for a sale, except the defendant, Cornelia F. Coster, who asks for a partition.
    Cornelia F. Coster is very wealthy, but Julia De Lancey Coster is dependent upon the income of her share of the property to provide herself a home.
    A great deal of testimony was taken on the crucial question whether, if the premises were actually partitioned into three parts, the aggregate value of those parts would be considerably less than the value of the property held as a whole. It is not important to consider in detail the testimony of the experts who were examined by both sides on that question. It is sufficient to say that it appears by a strong preponderance of proof that the result of an actual partition would be that the aggregate value of the parts would be much less than the value of the premises held as a whole.
    The testimony of Mr. Seton, of Mr. Coster, and of Mr. Mapes, to that effect, is more reliable than the testimony of the defendant’s witnesses, because those gentlemen are better informed as to the value of real estate in the vicinity of the premises in question, and as to the market therefor.
    It clearly appears that while both parcels can be sold to advantage as a whole, no one part of each can be sold advantageously if a division is made.
    If divided into three parts, no one part would be large enough for farming purposes, and as there is no demand in that section for city lots or villa sites, it is clear that no part could be disposed of advantageously if laid out in that way. While there have been some sales of land cut up into city lots nearer the railroad, the evidence makes it very clear that an attempt to sell any part of the Coster place .in city lots at this time would be quite certain to be a failure. If the larger tract was divided, one part would necessarily contain the house and outbuildings, and a comparatively small area of land. The value of such a parcel would be depreciated, as it would be too small for a country place, and could not be used advantageously for any other purpose.
    In regard to the smaller parcel, the eight acre lot, the very limited means of access to that property makes it of comparatively little value unless owned by one person. As to both tracts', it seems clear that an actual partition cannot be made without great prejudice to the owners, and that a sale is in every way desirable.
    It is insisted on behalf of the defendant, Cornelia F. Coster, who asks that an actual partition be made, that one part shall be partitioned and set off to her; the residue to be sold, if desired by the other owners. The rule is, that if one part can be set off to satisfy the share of one of the parties without prejudice to the other owners, it may be done; but if it appears that it would be prejudicial to the other owners, it should not be done and a sale of the whole should be made. Haywood v. Judson, 4 Barb., 228.
    For the reasons already stated, it would clearly be prejudicial to the other owners if one part was set off to satisfy the share of Mrs. Coster, as the premises would sell more advantageously as a whole, and the value of any two parts, if sold.together, would be materially less than the corresponding portion of the selling price of the whole property.
    It was argued by the counsel for Mrs. Coster that as the value of the property has increased very much of late years, and will, doubtless, continue to increase by reason of the strong probability that that part of Westchester county will ultimately be annexed to the city of New York, and for other causes, those facts should be considered as strong and convincing reasons for making an actual partition, in order that the owners may have the advantage of the anticipated rise in value. To give to this argument the force which counsel asks, would require that the legal rules governing the disposition of the questions involved in this action should be disregarded.
    The right of Mr. Coster, the plaintiff, and of his sister, Julia De-Lancey Coster, to have the premises in question partitioned or sold at this time is absolute; and in determining whether they shall be sold or partitioned, we have to look at the facts and circumstances of the case as they now exist, not at what may happen in the future. The test is, as already stated, would the aggregate value of the several parts when held by the different parties in severalty be materially less now than the whole value if owned by one person.
    On this point the evidence admits of no doubt, and it is proper to consider in this connection that as Mrs. Coster is very wealthy she can protect herself by purchasing the property when it is sold, if she desires to do so. Clason v. Clason, supra; Walter v. Walter, 3 Abb. N. C., 17.
    If it is proper to consider the demand of Mrs. Coster that the premises shall be partitioned in order that she may hold her part in severalty to take advantage of the anticipated advance in value, it seems equally proper to consider the claim of Miss Coster, who is dependent upon the income of her part for her support, that the property shall be sold. The latter may with great force insist that it is of the utmost importance to her that the property shall be disposed of now to the best advantage, and that if she is compelled to accept a third part thereof, because it may increase in value in the future, she may be compelled to sell it at a great sacrifice before any demand for such small parcels of land shall arise.
    The report was confirmed at special term and the following opinion filed:
    Dyicma®, J.—It is frequently difficult to determine whether a sale or partition of land in action for that purpose will be most beneficial to the parties in interest, and also in this case there seems to be some uncertainty in relation to the question.
    The land consists of two parcels of unequal size and value, and there are three tenants in common. Two of the owners desire a sale; the other desires a partition, and the referee has reported in favor of a sale, and has assigned some very good reasons for his conclusion.
    It is quite apparent that an equal division into three parts cannot be made ; one parcel contains thirty-one acres of land and the mansion house and out-buildings. The other parcel contains about eight acres with no buildings, and the land itself is not so valuable as the land in the larger parcel.
    It is true that the parties, or at least two of them, are able to counterpose inequality to the division by compensation, but that is not a very satisfactory method of producing equality.
    It is entirely certain that no injustice can result from a sale because the property is valuable, and will find a ready sale at a large price.
    In view of all the circumstances, my conclusion is that the report of the referee should be confirmed, and a sale directed by the same referee as all the parties joined in a request for his appointment to make the sale, if one was ordered.
    
      Frederick Seymour, for app’lt;
    
      Billings <& Cardoza (Cales Morris, of counsel), for pl’ffs, resp’ts;
    
      Edgar J. Nathan, for de’ft, resp’t.
   Pratt, J.

The referee’s conclusions are sustained by the proof. If appellant is right in her views of the value of the eight acre lot, she can protect her rights by buying it upon the sale. As she is entitled to one-third the whole estate, and the eight acre lot is of far less value than one-third, so to do would not require any cash payment, and would be substantially the same as its being set aside to her, as she desires.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  