
    Emeline Wells, Appellant, v. Frances Vanderwerker and Others, Respondents.
    
      Costs in partition where an unsuccessful defense has been interposed,—from whose share payable — determined only on application for final judgment, not by the referee — motion to amend a final judgment made before another judge.
    
    Where a defense was interposed in an action of partition, by a defendant who denied the plaintiff’s ownership and claimed title in fee in himself, it was considered that the plaintiff, having succeeded, should be paid his costs from the whole of the proceeds of sale, except the costs and expenses of the trial which should be paid from the share of the proceeds belonging to such defendant. Under sections 1577 and 1579 of the Code of Civil Procedure, the discretion conferred on the court over the subject of costs in a partition action is to be exercised on the application for final judgment and not before; the court is not bound to adopt a conclusion of law relative to the payment of costs contained in the report of the referee before whom the issues were tried.
    The motion to amend a final judgment in partition in respect to costs, made at a. Special Term held by another judge than the one who hold the Special Term at which the judgment was granted, is in effect an effort to review the action of the judge who made the original order, and is properly denied.
    Appeal by the plaintiff, Emeline Wells, from that part of a final judgment of the Supreme Court in favor of the plaintiff, entered • in the office of the clerk of the county of Saratoga on the 3d day • of June, 1899, upon the report of a referee which directs that the costs therein awarded to the plaintiff be paid out of the whole of the proceeds of the sale of the premises sold in the action, with notice of an intention to bring up for review upon such appeal that part of an interlocutory judgment entered in said clerk’s office on the 24th day of March, 1899, which reserves the question of costs until filial judgment; also, an appeal by the plaintiff from an order made at the Clinton Special Term, and entered in the office of the clerk' of the county of Saratoga on the 2d day of August, 1899, denying the plaintiff’s motion to amend the final judgment in the action.
    
      James H. Bain, for the appellant.
    
      L. H. Northup and A. D. Arnold, for the respondents.
   Merwin, J.:

This action was brought for the partition of certain real estate. It was alleged in the complaint that the plaintiff was the owner in fee of an undivided one-half of the premises, and that the defendants Vanderwerker and Varney, as devisees of Jane Wheeler, deceased, were the owners of the other undivided half subject to a legacy of $200 to the defendant Slade. The administrator with the will annexed of the said Jane Wheeler, deceased, was made a party defendant. The defendants Vanderwerker, Varney and Slade put in an answer denying the ownership of the plaintiff and alleging, among other things, that Jane Wheeler at her death in February, 1896, was seized in fee of all the premises, and that the whole were subject to the debts against the estate of said Wheeler. The issues so raised were referred to a referee to hear, try and determine. A trial was had before the referee, and he found in favor of the plaintiff that she was the owner of an undivided one-half, and that Jane Wheeler at her death was the owner of the other undivided one-half only, and that this passed by the will of said Wheeler to the defendants Vanderwerker and Varney, subject to the legacy of the defendant Slade, and subject to the debts against the estate of the testatrix-

The referee also found that a sale of the premises was necessary, and one of his conclusions of law was that the plaintiff was entitled to recover the costs of the action to. be paid from the proceeds of the sale, except that the costs of the trial should be paid by the defendants Vanderwerker and Varney from the proceeds of their respective interests. Thereupon the plaintiff moved at Special ‘Term for an interlocutory judgment in accordance with the report of the referee. After a hearing the court confirmed the report of the referee, except that it reserved the question of costs until final judgment, and an interlocutory judgment was granted in the usual form. A sale was made, and thereafter the plaintiff moved at Special Term for final judgment and for a confirmation of the report of sale and for an award of costs pursuant to the report of the referee upon the issues. After a hearing, at which all parties were represented, a final judgment was granted, which, amopg other things, awarded to the plaintiff the costs of the action, including an additional allowance, and provided that they should .be paid' from the whole of the proceeds of the sale. Thereafter a motion was made by the plaintiff at Special Term to amend the final judgment by making it conform, on the subject of the manner of the payment of plaintiff’s costs, to the report of the referee by whom the issues were tried. This motion was denied, and the plaintiff appeals.

The final judgment was granted after a hearing of all parties, and its provisions upon disputed questions stand as the decision of the court. The motion to amend was in effect an effort to review, and for that reason it was properly denied, as it was made at a Special Term held by another judge.

The appeal from the judgment, however, brings up for review thq action of the court on the subject of the plaintiff’s costs.

The costs in a partition action are said to be in the discretion of the court. (Henderson v. Scott, 43 Hun, 22 ; Weston v. Stoddard, 42 N. Y. St. Repr. 76; Austin v. Ahearne, 61 N. Y. 6, 21.) Ho question, however, is made here' as to the right generally of the plaintiff to have costs. The question is whether the costs arising from the trial of the issues should be paid from the proceeds of the sale before division, or whether they should be paid from the shares of those who caused the litigation. The plaintiff claims that the decision of the referee on the trial of such issues should control, while on the part of the defendants it is claimed that the court on the application for final judgment had the power to make' such order as to costs as to it seemed proper.

The referee had no power over the subject of costs. (Flynn v. Kennedy, 62 Hun, 26; Weeks v. Cornwell, 38 id. 577.) That was a matter to be considered and determined on the application for final judgment (Code Civ. Proc. §§ 1577, 1579), and was not a matter within the scope of the intermediate reference, and the action or decision of the referee on that subject was not an effective adjudication. The discretion given by section 1579, to “ direct that the costs and expenses of any trial, reference or other proceeding in the action, be paid out of the share of any party „in the proceeds,” was to be exercised on the application for final judgment, and not before.

Assuming that the action of the referee as to costs does not control, still the plaintiff claims that the court in granting the final judgment should not have made the costs of the litigation payable from the whole proceeds, but only from the share represented by the unsuccessful litigants. We are inclined to think that the contention of the plaintiff in this regard is correct. ISTo good reason is apparent for requiring the plaintiff’s share in the premises to bear one-half of the expense of a litigation in which she was successful, üo question is made by the defendants as to the power of the court.

It follows that that part of the judgment which provides that the plaintiff’s costs shall be paid from the whole of the proceeds should be modified by providing that the plaintiff’s costs, except the costs and expenses of the trial, shall be paid from the whole of the proceeds, and that the plaintiff’s costs and expenses of the trial be paid from the share of the proceeds represented by the defendants, and that the judgment as so modified should be affirmed.

All concurred.

Judgment modified as stated in opinion, and as so modified affirmed, so far as appealed from, with costs of the appeal to the appellant.

. Order affirmed, with ten dollars costs and disbursements to respondents.  