20 N.Y.S. 906 | N.Y. Sup. Ct. | 1892
We do not agree with the appellants in their first contention, that the value of the plaintiff’s interest is the sole subject-matter here involved. This is an action for the partition of real estate, and the property sought to be partitioned is the subject-matter involved, within the meaning of section 3253 of the Code of Civil Procedure. The question is not affected by the fact that the partition follows a successful attack upon a will. It is still an action for the partition of real estate. In such an action the plaintiff does not, as in ejectment, seek to recover his interest from the defendants. The parties are tenants in common, and the action is necessarily in the interest and for the benefit of all such tenants in common. The plaintiff, in his complaint, prays that the interests of all parties, plaintiff and defendant, may be settled and determined by the court, and that an actual partition in accordance with such determination may be made, according to law and the practice of the court. In case such actual partition cannot be made without material injury, then the plaintiff further prays that the property may be sold, and the proceeds divided among the parties to the action according to their respective rights and interests. In the cases cited by the appellants (Struthers v. Pearce, 51 N. Y. 365; Adams v. Arkenburgh, 106 N. Y. 615, 13 N. E. Rep. 594; Weaver v. Ely, 83 N. Y. 89; Abell v. Bradner, [Sup.] 15 N. Y. Supp. 64) the plaintiffs sought no judgment for the benefit of the defendants or in their interest, but demanded rights which were withheld from them by the defendants. Even in Adams v. Arkenburgh, supra, which was an action for the dissolution of a partnership and an accounting, the plaintiff in his complaint demanded from the defendant, who it was averred had appropriated joint funds of the partnership, and had pos
We agree, however, with the appellants, in their second contention, namely, that the court cannot allow to the parties in the aggregate more than 5 per centum upon the whole value of the property sought to be partitioned. Section 3253, as it bears upon this question, reads as follows: “In an action * * * for the partition of real property * * * the court may also, in its discretion, award to any party * * * a sum not exceeding five per centum upon * * * the value of the subject-matter involved.” Clearly, the words “any party,” as here used, do not mean “each party;” otherwise the court might, if there were 20 parties, allow 100 per centum. The object was to give the court discretion as to the proper distribution of whatever allowance should be granted within the limit fixed. But such limit was to be 5 per centum upon the' value of the property. It was so held in Fraser v. Trustees, (Sup.) 11 N. Y. Supp. 384, and we concur in the conclusion there arrived at. Our construction is not in conflict with the views expressed in Weed v. Paine, 31 Hun, 10. It was there held that the restriction in amount contained in section 3254 applied only to each side of the litigation, and that, consequently, the court had power in a proper case to award $4,000 in the aggregate. This is entirely consistent with a primary limitation of 5 per centum upon the subject-matter involved in the action. Undoubtedly what the court meant was that, where the value of the subject-matter equaled or exceeded $80,000, the court had power to award $2,000 to each side.
We also think that allowance should not have been granted to the plaintiff’s wife, nor to the guardian ad litem, of his infant daughter, nor to the plaintiff’s mortgagee. The appellants have a right to complain of the reduction of the fund in this manner. The plaintiff’s wife had merely an inchoate right of dower in the plaintiff’s one-seventh part, for which she has been allowed by the decree $123. Her costs, together with the allowance complained of, amount to $156.24.
The allowance to the guardian ad litem was entirely unauthorized. He was entitled out of the estate to his taxable costs, and to no more. It was expressly adjudged that this infant had no interest whatever in the estate. Her interest under the will was taken by her father through this decree which he procured, and he certainly cannot charge upon his tenants in common the expenses of his daughter’s unsuccessful contest with himself. There is nothing in the case of Weed v. Paine, supra, which would justify the court in awarding to the guardian of this infant an extra allowance out of other people’s money. The court was there speaking of a case where the° infant had an interest in the subject-matter. Here she has no interest whatever in the estate, nor in the money realized upon the sale. Under such circumstances, the utmost that the guardian can be allowed out of the fund is his taxable costs. Insurance Co. v. Van Rensselaer, 4 Paige, 87; Gott v. Cook, 7 Paige, 521; Downing v. Marshall, 37 N. Y. 391, 395; In re Holden, 126 N. Y. 589, 27 N. E. Rep. 1063. In the case first cited the chancellor said: “If any extra allowance is made to the guardian ad litem of the infants, it
