102 N.Y.S. 481 | N.Y. App. Div. | 1907
The action is brought to partition two parcels of land on Rockaway Beach in the city of New York, owned in fee by the plaintiffs, Malcolm R. Lawrence, Frank J. Heaney and Silas K. Everett, and the defendants Adah P. Vernarn and'John R. Murray as tenants in common. The first nine paragraphs of the complaint contain the usual allegations of a cause of action for the partition of real property and then alleges that the appellant claims some interest in the premises, the precise extent and nature of which is unknown to the plaintiffs but which is understood by them to be that the correct boundary line of the land on the south is not as alleged in the complaint but is farther west and north, and that the appellant had asserted his claim by an attempted occupancy of some portion of the premises, the erection of two small houses thereon and the tearing down of the boundary fences erected on that portion of the premises ; that such claim constitutes a cloud oh plaintiffs’ title and that it was impossible to determine the basis of division between the cotenants until the court should ascertain what part of the premises (if any) belonged to thé appellant.
The appellant Norton demurred to the complaint upon four grounds, summarized by his counsel as follows: That with the cause of action in partition there was joined (1) an action of ejectment as against the appellant and his tenants; (2) three actions to deter
The issues of law have been tried, and an interlocutory judgment overruling the demurrer rendered, from which this appeal is taken. I think that the demurrer was properly overruled by the learned trial justice. Under the construction of the Code provisions applicable to actions of partition,
The interlocutory judgment should be affirmed.'
Hirsohberg, P. J., Woodward, Jenhs and Miller, JJ., concurred.
Interlocutory judgment affirmed, with costs.
See Code Civ. Proc: § 1532 et seq[Rep,