person other than a joint tenant or a tenant in common of the property, shall be a plaintiff in the action. In a partition action, the executors or administrators and creditors of a deceased person who, if living should be a party to said action, must be made parties defendant. And if the complaint in such action alleges, and it is made to appear by proof that there are unpaid debts of said deceased. payable out of his estate, the premises sought to be partitioned may be sold free from such debts, and the money produced by such sale shall be brought into court, and the same, or so much thereof as may be necessary, shall be used for the payment of such debts in the same manner as debts of a deceased person are paid from the proceeds of sale of real estate in the surrogate's court. And the court in which the said action is brought may proceed to ascertain such debts and direct their payment from such proceeds; or such court may direct such money to be paid into the proper surrogate's court, and direct the same to be administered as if the sale of such interest in said land had been made upon the decree of such surrogate. 81539. [Am'd 1892.] That plaintiff, may, at his election, make a 14 Abb. tenant by the curtesy, for life or for years, of the entire property or C. 94. whoever may be entitled to a contingent or vested remainder or reversion in the entire property, or a creditor or other person having a lien or interest which attaches to the entire property a defendant in the action. In that case the final judgment may either award to such party his or her entire right and interest or the proceeds thereof, or where the right or interest is contingent, direct that the proceeds or share thereof be substituted for the property and invested for whoever may eventually be entitled thereto, or may reserve and leave unaffected his or her right and interest or any portion thereof. A person specified in this section who is not made a party, is not affected by the judgment in the action. § 1540. The plaintiff may, at his election, make a creditor, having a lien on an undivided share or interest in the property, a defendant in the action. In that case, he must set forth the nature of the lien, and specify the share or interest to which it attaches. If partition of the property is made, the lien, whether the creditor is or is not made a party, shall thereafter attach only to the share or interest assigned to the party upon whose share or interest the lien attached; which must be first charged with its just proportion of the costs and expenses of the action, in preference to the lien. § 1541. Where a defendant having a share or interest in the property is unknown, or where his name or part of his name is unknown, and the summons is served upon him by publication, or without the State, pursuant to an order for that purpose, as prescribed in article second of title first of chapter fifth of this act, the notice subjoined to the copy of the summons as published, or served therewith, must, in addition to the matters required in that article, state briefly the object of the action, and contain a brief description of the property. 1542. The complaint must describe the property with common certainty, and must specify the rights, shares, 126 N.Y. 370. and interests therein of all the parties, as far as the same are known to the plaintiff. If a party, or the share, right, or interest of a party, is unknown to the plaintiff; or if a share, right, or interest is uncertain or contingent; or if the ownership of the inheritance depends upon an executory devise; or if a remainder is a contingent remainder, so that the party cannot be named; that fact must also be stated in the complaint. 11 Abb. N. C. 349. Civ. Fro. 448. 160. 3 How. Pr. N. S. 26. § 1543. The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty one of this act. The issues, joined as prescribed in this section, must be tried and determined in the action. § 1544. An issue of fact joined in the action is triable by a jury. Unless the court directs the issues to be stated, 120 N. Y. as prescribed in section nine hundred and seventy of this act, the issues may be tried upon the pleadings. 52 Hun, 532. 589. 3 How. Pr. 117 Id. 520. § 1545. Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares, and interests of the sev eral parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action. § 1546. The interlocutory judgment must declare what is the right, share, or interest of each party in the property, as far as the same has been ascertained, and must determine the rights of the parties therein. Where it is found, by the verdict, report, or decision, or where it appears to the court, upon an application for judgment in favor of the plaintiff, that the property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the owners, the interlocutory judgment, except as otherwise expressly prescribed in this article, must direct that the property, or the part thereof which is so circumstanced, be sold at public auction. Otherwise, an interlocutory judgment in favor of the plaintiff, must direct that partition be made between the parties, according to their respective rights, shares, and interests. § 1547. Where the right, share, and interest of a party has been ascertained and determined, and the rights, shares, or interests of the other parties, as between themselves, remain unascertained or undetermined, an interlocutory judgment for a partition, rendered as prescribed in the last section, must direct a partition, as between the party whose share has been so determined and the other parties to the action. Where the rights, shares, and interests of two or more parties have been thus ascertained and determined, the interlocutory judgment may also direct the partition among them of a part of the property, proportionate to their aggregate shares. In either case, the court may, from time to time, as the other rights, shares, and interests are ascertained and determined, render an interlocutory judgment, directing the partition, in like manner, of the remainder of the property. Where an interlocutory judgment is rendered, in a case specified in this section, the court may direct the action to be severed, and final judgment to be rendered, with respect to the portion of the property set apart to the parties, whose rights, shares, and interests are determined, leaving the action to proceed as against the other parties, with respect to the remainder of the property; and, if necessary, the court may direct that one of those parties be substituted as plaintiff. § 1548. Where two or more parties, to an action for partition, make it appear to the court, that they desire to enjoy their shares in common with each other, the interlocutory judgment may, in the discretion of the court, direct partition to be so made, as to set off to them their shares of the real property partitioned, without partition as between themselves, to be held by them in common. § 1549. Where the interlocutory judgment, in an action for partition, directs a partition, it must designate three reputable and disinterested freeholders as commissioners, to make the partition so directed. § 1550. Each of the commissioners must, before entering upon the execution of his duties, subscribe and take an oath before an officer specified in section eight hundred and forty-two of this act, to the effect that he will faithfully, honestly, and impartially discharge the trust reposed in him. Each commissioner's oath must be filed with the clerk, before he enters upon the execution upon his duties. The court may, at any time, remove either of the commissioners. If either of them dies, resigns, neglects or refuses to serve, or is removed, the court may, from time to time, by order, appoint another person in his place. § 1551. The commissioners must forthwith proceed to make partition, as directed by the interlocutory judgment, unless it appears to them, or a majority of them, that partition thereof, or of a particular lot, tract, or other portion thereof, cannot be made, without great prejudice to the owners; in which case, they must make a written report of that fact to the court. § 1552. In making the partition, the commissioners must divide the property into distinct parcels, and allot the several parcels thereof to the respective parties, quality and 14 N. Y. 61. quantity being relatively considered, according to the respective rights and interests of the parties, as fixed by the interlocutory judgment. They must designate the several parcels by posts, stones, or other permanent monuments. They may employ a surveyor, with the necessary assistants, to aid them in so doing. § 1553. Where a party has a right of dower in the property, or a part thereof, which has not been admeasured, or has an estate by the curtesy, for life, or for years, in an undivided share of the property, the commissioners may allot to that party his or her share of the property, without reference to the duration of the estate. And they may make partition of the share, so allotted to that party, among the parties who are entitled to the remainder or reversion thereof, to be enjoyed by them upon the determination of the particular estate, where, in the opinion of the commissioners, such a partition can be made without prejudice to the rights of the parties. 1554. All the commissioners must meet together in the performance of any of their duties; but the acts of a majority so met are valid. They, or a majority of them, must make a full report of their proceedings, under their hands, specifying therein the manner in which they have discharged their trust, describing the property divided, and the share or interest in a share, allotted to each party, with the quantity, courses, and distances, or other particular description of each share, and a description of the posts, stones, or other monuments; and specifying the items of their charges. Their report must be acknowledged or proved, and certified, in like manner as a deed to be recorded, and must be filed in the office of the clerk. § 1555. The fees and expenses of the commissioners, including the expense of a survey, when it is made, must be taxed under the direction of the court; and the amount thereof must be paid by the plaintiff, and allowed as part of his costs. 1556. The court must confirm or set aside the report, and may, if necessary, appoint new commissioners, who must proceed as directed in this article. § 1557. Upon the confirmation, by the court, of the State Rep. report of the commissioners making partition, final judg ment, that the partition be firm and effectual forever, must be rendered, which is binding and conclusive upon the following persons: 1. The plaintiff ; each defendant upon whom the summons was served, either personally, or without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act; and the legal representatives of each party, specified in this subdivision. So much of section four hundred and forty-five of this act as requires the court to allow a defendant to de fend an action, after final judgment, does not apply to an action for partition. 2. Each person claiming from, through, or under such a party, by title accruing after the filing of the judgmentroll, or after the filing, in the proper county clerk's office, of a notice of the pendency of the action, as prescribed in article ninth of this title. 3. Each person not in being when the interlocutory judgment is rendered, who, by the happening of any contingency, becomes afterwards entitled to a beneficial interest attaching to, or an estate, or interest in, a portion of the property, the person first entitled to which, or other virtual representative whereof, was a party specified in the first subdivision of this section. But this section does not apply to a party, whose right and interest are expressly reserved and left unaffected, as prescribed in section one thousand five hundred and thirtynine of this act, or to a person claiming from, through, or under such a party. § 1558. The final judgment must also direct that each of the parties, who is entitled to possession of a distinct parcel allotted to him, be let into the possession thereof, either immediately, or after the determination of the particular estate, as the case requires. § 1559. The final judgment for the partition of the property must also award, that each defendant pay to the plaintiff his proportion of the plaintiff's costs, including the extra allowance. The sum to be paid by each must be fixed by the court, according to the respective rights of the parties, and specified in the judgment. If a defendant is unknown, his proportion of the costs must be fixed and specified in like manner. An execution against an unknown defendant may be issued, to collect the costs awarded against him, as if he was named in the judgment; and his right, share, or interest in the property may be sold by virtue thereof, as if he was named in the execution. § 1560. If the commissioners, or a majority of them, report that the property, or a particular lot, tract, or other portion thereof, is so circumstanced, that a partition thereof cannot be made, without great prejudice to the owners thereof, the court, if it is satisfied that the report is just and correct, may thereupon, except as otherwise expressly prescribed in this article, modify the interlocutory judgment, or render a supplemental interlocutory judgment, reciting the facts, and directing that the property, or the distinct parcel thereof so circumstanced, be sold by a referee, designated in the judgment, or by the sheriff. § 1561. Before an interlocutory judgment for the sale 3 How. Pr. of real property is rendered, in an action for partition, N. S. 26 the court must, either with or without application by a party, direct a reference, to ascertain whether there is any |