Opinion
January 31, 1907.
James S. Darcy, for the appellant.
Charles S. Noyes, for the respondents.
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. Vernam 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 on 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 the 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 determine different and distinct boundary lines on the east, south and west of the property sought to be partitioned, said causes of action affecting different groups of defendants who had no interest in any of the land sought to be partitioned; (3) an action to remove a cloud on title and to determine the validity, scope and effect of the two deeds under which the appellant was alleged to claim title to the whole or a portion of the premises described in the complaint.
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 plaintiffs were warranted in making party defendants all persons having or claiming an interest in the lands sought to be partitioned in order to settle all controversies to the title in one action, and the complaint states a good cause of action against such parties. ( Weston v. Stoddard, 137 N.Y. 119; Satterlee v. Kobbe, 173 id. 91; Wallace v. McEchron, 176 id. 424.) But one cause of action is alleged — the partition of the real property described in the complaint. The determination of the other matters alleged is incidental to the relief demanded, and all contentions between the parties relating to their respective rights in the property sought to be partitioned, no matter on what grounds such claims of rights are based, or from what sources they arise, are properly to be determined and adjudicated in the one action of partition. ( Collins v. Collins, 36 N Y St. Repr. 591; Townsend v. Bogert, 126 N.Y. 370.) There is no joinder of independent causes of action, and it is clearly apparent from the allegations of the complaint that all of the relief demanded that can be granted in this action, outside of the partition, is merely incidental to the partition and necessary to be determined before the court can intelligently adjudicate the respective rights of the parties in the land which is the subject of the partition. The action being in equity, it is not necessary that the alleged causes of action should affect all of the defendants to the same extent or in the same manner. ( Rogers v. Wheeler, 89 App. Div. 435; Satterlee v. Kobbe, supra.) Conceding that the judgment demanded may, as to some of the defendants, seek relief which would not be granted in this action, this fact does not sustain the contention that a separate cause of action is thereby alleged. ( Powell v. Hinkley, 93 App. Div. 138. ) The object of the Code provisions relating to actions of partition is to authorize such procedure as will result in cotenants of the land sought to be partitioned securing a clear title in severalty to such portion of the premises as shall be set apart to them respectively, and to enable the court to make its decree effectual, which can be accomplished in no other manner than by considering and adjudicating the different claimed rights of the parties to the action, limited to a portion of the premises as well as those extending to the whole.
The interlocutory judgment should be affirmed.
HIRSCHBERG, P.J., WOODWARD, JENKS and MILLER, JJ., concurred.
Interlocutory judgment affirmed, with costs.