
    Joanna E. Crossman, Respondent, v. Abraham J. Wyckoff and Others, Appellants, Impleaded with Others.
    
      Allowance lo a defendant in an action in which a judgment of actual partition is entered.
    
    The Supreme Court has power under section 3253 of the Code of Civil Procedure, as amended by chapter 299 of the Laws of 1899, to make an allowance to a defendant in an action in which a judgment of actual partition is entered.
    Appeal by the defendants, Abraham J. Wyckoff and others, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 30th day of November, 1900, as denies the said defendants’ motion for an additional allowance.
    
      Adolph Kiendl [Charles B. Law with him on the brief], for the appellants.
    
      Willard N. Baylis, for the respondent.
   Jenks, J.:

The statute provides in so many words that in an action brought for the partition of real property the court may in its-discretion award to any party a sum not exceeding five per centum upon, the-value of the subject-matter involved. (Code Civ. Proc. § 3253.) If there could be any doubt raised by the expression. “ any party ” it is dissipated by the section immediately following: “ But all the sums awarded to the plaintiff as prescribed in section 3252 of this act, of to a party or two of more parties on the same side, as prescribed * * * in subdivision second of the last section, cannot exceed, in the aggregate, two thousand dollars.” A suit which ripens into judgment of actual partition is of course an action for partition; indeed, it is the sale that is decreed if it appear that a partition cannot be made. (Code Civ. Proc. § 1532.) I think it is plain, then, that section 3253 expressly authorizes an allowance to a defendant in actual partition, unless that power be nullified by other statutory provisions. I can find no express limitation upon this section. Indeed, the argument advanced against such authority is based only upon a construction of this section with other sections of the Code. I am not impressed by the contention that inasmuch as section 3261 provides that the article does not affect any provision contained elsewhere in the act whereby the amount of costs is specially fixed otherwise than as prescribed in the article, therefore sections 1559 and 1579 exclude the power to award an allowance to the defendant in a suit for actual partition.' It is enough to say that neither of these two sections specially fixes ” the amount of costs in an action for partition, but both are provisions in furtherance of the collection or the payment of costs. But the said section 1559 is the basis for argument which deserves more serious consideration, partly because it is supposed to have the authority of Weed v. Paine (31 Hun 10) behind it. In that case, Daniels, J:, referring to an allowance to parties on each side in a par. tition suit, says: If actual partition of the property is made, that may be the subject of serious doubt. (Code, § 1559.) ” But an examination of the case shows that the question was not before the court; and, indeed, the learned judge, in the sentence immediately preceding the one quoted, says that the question of permitting an allowance to parties on each side “ is not a matter now required to be determined.” So the expression is avowedly obiter, and has but the weight of an obiter doubt expressed by a most learned and able judge. Section 1559 does not purport to confer power or to limit power conferred by section 3253, or by any other section. It is not a statute of authority, but one. in furtherance, which relates to the plaintiff alone. There is nothing in its terms which indicates any intention to limit the full force of section 3253. Necessarily, then, the proposition is that omission to make provision for the defendant in this statute of furtherance excludes from the scope of the statute of authority a case absolutely within its express and explicit terms. I know of no canon of construction which would warrant such a conclusion.

In addition to Weed v. Paine (supra) the learned counsel for the appellant cites Davis v. Davis (3 N. Y. St. Repr. 163);. Sprague v. Engelbrecht (29 Misc. Rep. 464); Gray v. Hudson (Queens County Special Term, Feb. 1900), and Fiero on Special Actions (Vol. 1 [2d ed.], 253). Davis v. Davis (supra) is a decision of the Special Term of the late fifth department, made in 1886, upon art application for final judgment in partition, whereat the plaintiff insisted that the defendant was not entitled to costs, and the learned trial justice said that he could find no- authority for charging the defendant’s costs against the plaintiff. Sprague v. Engelbrecht (supra) is a Special Term decision in this department, made in 1899, and the learned justice only said that as he construed the case (cases ?) he was not permitted to award costs and an allowance to defendants in actual partition. The decision in Gray v. Hudson (supra) is contained in a memorandxun stating that the . court thought it had no power, citing only Weed v. Paine (supra). All that is said in Mr. Fiero’s work is: “ It seems it (an allowance) might be made where a sale is had, but not where an actual partition is made. (Weed v. Paine, 31 Hun, 10.) ” Weed v. Paine is ‘also reported in 13 Abbott’s New Cases at page 200, and the learned reporter, Df. Austin Abbott, marks with an asterisk the obiter doubt of Daniels, J., which I have quoted, and appends this note: “ I respectfully submit that this doubt is not well founded. Section 1559 is the same as section 72 of the title of the Revised Statutes on Partition, and it, was the practice under the Revised Statutes in cases of actual partition to give costs to the defendants as well- as the plaintiffs, as is shown by the case of Tibbits v. Tibbits (7 Paige, 204), decided by Chancellor Walworth in 1838.” And here I may further note as of some significance that subsequent to the decision in Weed v. Paine (supra) the Legislature has amended the 2d subdivision of section 3253 of the Code. lit formerly read ■ “ 2. In any other case specified in this section, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.” It now reads: “ 2. In any action or special proceeding specified in this section, where a defense has been interposed, or in an action for the -partition of real property, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.” The decision of the chancellor, in Tidbits v. Tidbits (supra), which is authority to sustain our view of this case, was made notwithstanding that section 72 of the Revised Statutes (2 R. S., 328) was then in force, and was essentially the same as section 1559 of the Code of Civil Procedure, and, indeed, is the basis of it. Chittenden v. Gates (25 App. Diy. 623) is directly in point. In that case of actual partition, the learned trial justice, Gaynor, J., granted costs and an allowance to the defendant. The plaintiff raised the question of power in his appeal, and an examination of his points shows that the question was argued before our court. The learned counsel for the respondent seeks to discriminate Chittenden v. Gates, upon the ground that a defense had been interposed, and contends that the allowance in that case was made and approved under section 3253 of the Code because the action was difficult and extraordinary, or a defense had been interposed, and not because the action was in partition. I can find no warrant for this contention. On the contrary, the brief of the appellant in that case shows that the allowance was made on the ground that the action was in partition, and the power of the court was directly attacked on the supposed authority of Weed v. Paine (supra), and on the force of section 1559 of the Code of Civil Procedure. (Vol. CI, App. Div. Cas., Law Library, Brooklyn, pp. 10, 44, 45 and 46 of appellant’s printed points.)

The learned counsel for the respondent makes the further point that no defense was interposed, and cites Defendorf v. Defendorf (42 App. Div. 167), which, however, is of no authority in this case for the reason that the decision was made under section 3253 prior to the amendment by chapter 299, Laws of 1899. Prior to that amendment, subdivision 2 thereof read: “ In any action or special proceeding, specified in this section, where a defense has been interposed, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.” Subsequent to amendment it reads: In any action or special proceeding specified in this section, where a defense has been interposed, or i/n an action for the partition of real property, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.”

'It appears by the opinion, to which we may refer (Bryant v. Allen, 54 App. Div. 500, 504), that the learned Special Term denied the motion upon the ground of lack of power. As we conclude that the power did exist, the judgment should be reversed, and the application remitted to the Special Term. But, under the circumstances, we think that neither costs nor disbursements should be granted upon this appeal.

Goodrich, P. J., Woodward, Hirschberg and Sewell, JJ., concurred.

Judgment reversed, in so far as it refuses to grant an additional or extjra allowance to the defendants, without costs of this appeal, and the matter remitted to the Special Term for action in accordance with the opinion of Jenks, J.  