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latter, subject to the rights and interests of the former. In such a case, the proceedings against the defendants so answering must be stayed until final judgment; and if the plaintiff recovers final judgment against the defendant, under whom they hold, the judgment operates as a transfer to the plaintiff of that defendant's right, title, and interest, and the costs of the defendant or defendants so answering are in the discretion of the court.

§ 1519. A verdict, report, or decision, in favor of the plaintiff, in an action specified in this article, must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is or specifying the duration of the term, if the estate is less than a fee.

§ 1520. If the right or title of the plaintiff, in an action specified in this article, expires after the commencement of the action, but before the trial, and he would have been entitled to recover, but for the expiration, the verdict, report, or decision must be rendered according to the fact; and the plaintiff is entitled to judgment for his damages for the withholding of the property, to the time when his right or title so expired.

§ 1521. The provisions of title fourth of chapter eighth of this act, as applied to an action specified in this article, are subject to the qualification that the court may, in its discretion, proceed as prescribed either in that title or in the next two sections.

§ 1522. Where, upon the death of a party, different persons succeed to the decedent's title to, or interest in, different distinct parcels of the property sought to be recovered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary; and that the successor to the title or interest of the decedent, to or in each distinct parcel, be substituted as plaintiff or defendant as the case requires, in the action relating thereto.

§ 1523. Where the plaintiff seeks to recover damages for withholding the property, and, upon the death of a party, different persons succeed to the decedent's right to or liability for those damages, and to his title to or interest in the property, the court may, upon motion made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, with the rents and profits thereof accruing after the decedent's death; the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plaintiff or defendant therein, as the case requires.

126 N.Y. 336 1524. Except in a case where it is otherwise expressly

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§ 1525. The court, at any time within three years after such a judgment is rendered, and the judgment-roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs, and all damages, other than for rents and profits, or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court upon a like application, made within two years after the second final judgment is rendered, and the judgment-roll is filed, may make an order vacating the second judgment, and granting a new trial, upon the like terms, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials shall be granted under this section.

61 How. Pr 192

90 NY. 238.

aitun, 18. 47 d. 405. 80N Y

State Rep 226.

136 N V. 356

18. N. Y. 442.

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51 Hun, 119.

the recovery of the real property claimed, at any time within three years after the disability ceases; but not afterwards.

§ 1528. The last three sections are not applicable, where the action is founded upon an allegation of rent in arrear; or in a case to which section four hundred and forty-five of this act is applicable.

§ 1529. Where the plaintiff has taken possession of real property, by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment, except as prescribed in section one thousand five hundred and twenty-five or section one thousand five hundred and twenty-six of this act. In such a case, if the defendant thereafter recovers final judgment in the action, it must award to him the restitution of the possession of the property; and he may have an execution thereupon for the delivery of the possession to him, as if he was plaintiff.

§ 1530. Upon a new trial, granted as prescribed in this article, the defendant may show any matter in defence, which he might show to entitle him to recover the possession of the property, if he was plaintiff in the action.

§ 1531. In an action, brought as prescribed in this article, the plaintiff, where he recovers judgment for the property, or possession of the property, is entitled to recover, as damages, the rents and profits or the value of the use and occupation of the real property recovered, for a term not exceeding six years; but the damages shall not include the value of the use of any improvements made by the defendant, or those under whom he claims. Where permanent improvements have been made, in good faith, by the defendant, or those under whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant, in reduction of the damages of the plaintiff, but not beyond the amount of those damages.

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aside report.

or setting

1557. Final judgment on report. Effect thereof.

1558. Judgment must direct delivery of possession. 1559. Costs; how awarded. Id.; against unknown parties.

1560. Sale of property; when directed.

1561. Reference to inquire as to
creditors.

1562. Duty of referee.
1563. Money to be paid into
court.

1564. Application for money.
1565. Payment of incumbrances.
1566. Other parties not to be
delayed.

1567. Sale of dower interest. 1568. Purchaser to hold the

property free therefrom. 1569. Gross sum to be paid to or invested for tenant in dower, etc.

1570. Interests of owners of future estates to be protected.

1571. Married woman may release her interest.

1572. Unknown owners.

§ 1573. Sale; terms of credit
thereupon.

1574. Credit; how secured.
1575. Separate securities.
1576. Report of sale.

1577. Final judgment; effect
thereof.

1578. Id.; effect thereof upon
incumbrancers.
1579. Costs and expenses; how
paid.

1580. Distribution of proceeds.
1581. Shares of infants.
1582. Id.; of unknown and ab-
sent owners.

1583. Id.; of tenants of par-
ticular estates.

1584. Court may require secu-
ity to refund.

1585. Security to be taken in
name of county treas-

urer.

1586. Action thereupon.
1587. Compensation to equalize
partition.

1588. Proceedings on death of
parties.

1589. Rents, etc., may be ad-
justed.

1590. Partition by guardian of
infant, committee of
lunatic, etc.

1591. Contents of petition.
1592. Court may authorize par-
tition.

1593. Effect of releases.
1594. When the State is inter-
ested.

1595. Exemplified copy of judg-
ment may be recorded.

§ 1532. Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made, without great prejudice to the

owners.

25 N. Y. State Rep 212

129 N. Y. 17.

31 Hun, 183. 41 Id. 613.

13 Civ. Pro.

83.

14 N. Y. State Rep.

887.

§ 1533. [Am'd 1887.] Where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for the partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein, but no sale of the premises in such an action shall 49 Hun, 502. be made, except by and with the consent in writing, to be acknowledged or proved and certified in like manner as a deed to be recorded, by the person or persons owning and holding such particular estate or estates; and if in such an action it shall appear in any stage thereof that partition or

19 Abb. N. C. 406.

sale cannot be made without great prejudice to the owners, the complaint must be dismissed. The dismissal of the complaint, as herein provided, shall not affect the right of any party to bring a new action, after the determination of such particular estate.

§ 1534. An action for the partition of real property shall not be brought by an infant, except by the written authority of the surrogate of the county in which the property, or a part thereof, is situated. The authority shall not be given, unless the surrogate is satisfied, by affidavit or other competent evidence, that the interests of the infant will be promoted by bringing the action. A judgment for a partition or sale shall not be rendered in such an action, unless the court is satisfied that the interests of the infant will be promoted thereby, and that fact is expressly recited in the judgment.

§ 1535. A guardian ad litem for an infant party, in an action for partition, can be appointed only by the court.

§ 1536. [Am'd 1884.] The security to be given by the guardian ad litem for an infant party in an action for par133 N. Y. 55 tition must be a bond, to the people of this state, executed

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by him and one or more sureties as the court directs, in a sum fixed by the court conditioned for the faithful discharge of the trust committed to him as guardian, and to render a just and true account of his guardianship in any court or place where thereunto required. The bond must be filed with the clerk before the guardian enters upon the execution of his duties, and it cannot be dispensed with although he is the general guardian of the infant.

§ 1537. A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died, holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such a devise. But in such an action, the plaintiff must allege and establish that the apparent devise is void.

§ 1538. [Am'd 1890.] Every person having an undivided share, in possession or otherwise, in the property, as tenant in fee, for life, by the curtesy, or for years; every person entitled to the reversion, remainder, or inheritance of an undivided share, after the determination of a particular estate therein; every person who, by any contingency contained in a devise, or grant, or otherwise, is or may become entitled to a beneficial interest in an undivided share thereof; every person having an inchoate right of dower in an undivided share in the property; and every person having a right of dower in the property, or any part thereof, which has not been admeasured, must be made a party to an action for a partition.

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