
    George C. Bouton, Plaintiff, v. George A. Fleharty et al., Defendants, Louis P. Penfield et al., Appellants, and Charles D. Swan et al., Respondents.
    
      Real properly — partition — evidence — paper writing purporting to be will may be received as evidence of title though not probated in this State.
    
    
      Bouton v. Fleharty, 215 App. Div. 180, affirmed.
    (Submitted April 2, 1926;
    decided May 4, 1926.)
    Appeal from a judgment, entered January 25, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of defendants-respondents and granting a new trial, and directed reinstatement of said verdict and the entry of judgment thereon. The action was to partition real property. The question was whether the Supreme Court, in a partition action, in determining rights to an interest in the property the subject of the action as between various defendants, can give effect to a paper writing purporting to be a will, as an evidence of title, unless that paper writing has been properly probated in this State.
    
      J. Henry Esser and Raphael A. Carretta for appellants.
    
      Arthur M. Johnson for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ. Absent: Andrews, J.  