§ 1539. Who may be made parties. The plaintiff may, at his election, make a tenant in dower, by the curtesy, for life, or for years, of 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 a party his or her entire right and interest, or the proceeds thereof, 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. Id., 36, amended; Bogardus v. Parker, 7 How. Pr. 305; Mead v. Mite chell, 17 N. Y. 210; Grinnell v. Maclean, 16 Hun, 133; Sup. Ct. Rule 71; Scott v. Guernsey, 48 N. Y. 106; Prentice v. Jansen, 21 Alb. L. J. 175, decided January 13, 1880. § 1540. Id.; as to persons having liens.— The plaint. iff 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. Id. 8 and 9, and L. 1830, ch. 320, ? 41 (2 Edm. 327) amended. $1541. Provision where a party is unknown.— 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 ac tion, and contain a brief description of the property. Id., 12, in substance; annulling the law as settled in Sanford v. White, 56 N. Y. 359; Herbert v. Smith, 6 Lans. 493. 1542. Complaint to state interests of parties.The complaint must describe the property with com mon certainty, and must specify the rights, shares, 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. Id., 25, subd. 1 and 2, and § 7 consolidated; Stewart r. Monroe, 56 How. Pr. 193; Moffatt v. McLaughlin, 13 Hun, 449; Rule 78; Bradshaw v. Callaghan, 8 Johns. 558; Van Cortland v. Beekman, 6 Paige, 492; Jen. kins . Van Schaack, 3 id. 242; Hyatt v. Pugsley, 23 Barb. 285, 303; Noble v. Cromwell, 26 id. 475; 27 How. 289; Bogardus v. Parker, 7 id. 305. § 1543. Title of parties may be tried. 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 521 of this act. The issues, joined as prescribed in this section, must be tried and determined in the action. 2 R. S. 320, 22 18 and 19 (2 Edm. 329), amended: see 22 521 and 1204, ante; see Van Schuyver v Mulford, et al., 59 N. Y. 426; Reed v. Child, 4 How. 125; Brownell v. Brownell, 19 Wend. 367; Howell v. Mills, 7 Lans. 193; Bogardus v. Parker, 7 How. Pr. 305. $1544. Issues of fact triable by jury.-An issue of fact joined in the action is triable by a jury. Unless the court directs the issues to be stated, as prescribed in section 970 of this act, the issues may be tried upon the pleadings. Wow. Hewlett v. Wood, 62 N. Y. 75; Clapp v. Bromagham, 9 Cow. 576, 577. 1545. When title to be ascertained by the court There a defendant has made default in appearing or ng, or where a party is an infant, the court must rtain the rights, shares, and interests of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action. Id., 22 and part of 23, amended; Watson v. Brigham, 3 How. 290; Ripple v. Gilborn, 8 id. 456; Larkin v. Mann, 2 Paige, 27; Jennings v. Jennings, 2 Abb. 6, 16; see Rule 70. § 1546. Interlocutory judgment. 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 circum. stanced that a partition thereof cannot be made with. out 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 auc tion. 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. See id., 23, 24 and 81; Rule 71; Furman v. Furman, 12 Hun, 441. §1547. Partial partition; when made.-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 unascer. tained or undetermined, an interlocutory judgment for a partition, entered 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 inter. locutory 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 sev. ered, 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 par ties, with respect to the remainder of the property; and if necessary, the court may direct that one of those parties be substituted as plaintiff. L. 1847, ch. 430, 22 1, 2 (4 Edm. 613). 1548. Shares may be set off in common.-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. Id.. 24: Scott v. Guernsey, 48 N. Y. 106; Haywood v. Jackson, 4 Barb. 228; Smith . Smith, 10 Paige, 470; Van Arsdale v. Drake, 2 Barb. 599; Classon v. Classon, 6 Paige, 541, see, also, Rule 71. § 1549. Appointment of commissioners.-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. Commissioners to be sworn, etc.-Each of the commissioners must, before entering upon the exe cution of his duties, subscribe and take an oath before an officer specified in section 842 of this act, to the effect that be will faithfully, honestly and impartially dis the trust reposed in him. Each commissioner's st be filed with the clerk, before he enters upexecution of his duties. The court may, at any me, 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. Stadsges Tojo call 88 rid of em 1. Id.; when to make partition. The com portion thereof, cannot be made, without great preju. dice to the owners; in which case, they must make a written report of that fact to the court. Id., 28; Tucker v. Tucker, 19 Wend. 226; Post v. Post, 65 Barb. 192; Underhill v. Jackson, 1 Barb. Ch. 73. 1552. Partition; how made.-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 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 neces sary assistants, to aid them in so doing. Id., 29. § 1553. Provision where there is a particular estate. -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, wthout 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 par tition can be made without prejudice to the rights of the parties. L. 1847, ch 430, 85 (4 Edm. 614), amended. § 1554. Report of commissioners.-All the commis sioners 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, specify. ing 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 |