Opinion
July 15, 1976
Appeal from a judgment of the County Court of Otsego County, entered October 9, 1975, upon a decision of the court at a Trial Term, which determined the parties' rights with respect to the property in question, ordered a sale thereof, and ordered an accounting. In this action to partition real property, it was adjudged that plaintiff and each defendant owns a one-third interest in the real property which is the subject of the action, that the realty be sold under the direction of the court, that an accounting be had between plaintiff and defendants of their respective expenditures for taxes, insurance, improvements and related disbursements in connection with the realty, that out of the proceeds of the sale plaintiff be paid his costs in the action, and that the sale price, after deducting said costs and the costs of the sale, be divided equally among plaintiff and defendants. The judgment appealed from, however, does not purport to determine the amount expended by plaintiff and defendants to protect the realty, but orders "an accounting be had between the plaintiff and the defendants of their respective expenditures for the payment of taxes, insurance, improvements and related disbursements". "An accounting has been described as a `necessary incident of almost every partition action and is had as a matter of right before the entry of either the interlocutory or final judgment'". (Giglio v Giglio, 46 A.D.2d 921.) On remittal, the trial court should determine the amounts expended by the parties in connection with the realty and direct payment of the proper amounts from the proceeds of sale. We have considered plaintiff's other claims and find no merit herein. Judgment modified, on the law and the facts, and matter remitted for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs. Koreman, P.J., Greenblott, Main, Herlihy and Reynolds, JJ., concur.