
    HELENA DENNERLEIN, App’lt, v. JOHN DENNERLEIN, et al. Resp’ts.
    
      Early & Pendergasl, for app’lt; L. C. & W. Platt, for resp’ts.
   Barnard, P. J.

The decision upon the appeal, pending when the appeal was brought, controls the same. The premises described in the complaint were sold at public auction under a decree in partition, and were bought by the appellant. The quantity fell short of the estimate of what was contained in the metes and bounds. The property was sold by the piece and not by the quantity. This was decided upon the former appeal which was taken from an order refusing to release the purchasers. The present order follows that of necessity, and when it is decided that the appellant was bound to take the title a resale was proper, as there was and is no dispute as to the fact that the purchaser refused to take the title.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.  