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filed, hey make an order vacating the second judgment, and granting a low 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.

$ 1526. Effect of judgment by default, etc. A final judgment for the plaiutiff, rendered in an action specified in this article, otherwise than upon the trial of an issue of fact, is, after the expiration of three years from the filing of the judgment-roll, conclusive upon the defendant, and every person claiming from, through or under him, by title accruing, either after the jedyment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title. But witbin five years after the judgment-roll is filed, the court, upon the application of the defendant, his heir, devisee, or assignee, and upon payment of all costs and damages awarded to the plaintiff,

must make an order vacating the judgment, and granting a new trial, if it is satisfied that justice i be thereby promoted, and the rights of the parties more satisfactorily ascertained and established, but not otherwise.

$ 1527. Id ; exception in case of disability. In a case specified in the last section, if the defendant is, at the time of the filing of the judgmentroll, either:

1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, för a term less than for life.

The time of such a disability is not a part of the three years, specified in the last section; but such a defendant, his heir, devisee, or assignee, may commence an action for 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 qualified. The last three sections are not applicable, where the action is founded upon an allegation of rent in artear; or in a case to which section 445 of this act is applicable.

$ 1529. Possession not to be changed by vacating of judgment, except, etc. 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 1525 or section 1526 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. Evidence on new trial. 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. Damages recoverable; set-off by defendant. 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 improveleus 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.

ARTICLE SECOND.

ACTION FOR PARTITION.

SECTION 1532. When action for partition may be brought

1533. Id. ; by remainderman.
1534. Id. ; by an infant.
1535. Guardian ad litem; how appointed.
1536. Security.
1537. When heir may maintain action for partition of devised property.
1538. Who must be parties.
1539. Who may be made parties.
1540. Id.; as to persons having liens.
1541. Provision, where a party is unknown.
1542. Complaint to state interests of parties.
1543. Title of parties may be tried.
1544. Issues of fact, triable by jury.
1545. When title to be ascertained by the courte
1546. Interlocutory judgment.
1547. Partial partition ; when made.
1548. Shares may be set-off in common.
1549. Appointment of commissioners.
1550. Commissioners to be sworn, etc.
1551. Id. ; when to make partition.
1552. Partition; how made.
1553. Provision where there is a particular estate.
1554. Report of commissioners.
1555. Fees and expenses.
1556. Confirming or setting aside report.
1557. Final judgment on report. Eifect 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 jugment; effect thereof.
1578. Id. ; effect thereof upon incumbrancers.
1579. Costs and expenses; how paid.
1580, Distribution of proceeds.
1581, Shares of infants.
1582. Shares of unknown and absent owners.
1583. Shares of tenants of particular estates.
1584. Court may require security to refund.
1585. Security to be taken in name of county treasures.
1586. Action thereupon.

1587. Compensation to equalize partition.

SPOTION 1588. Proceedings on death of parties.

1589. Rents, etc., may be adjusted.
1390. Partition by guardian of infant, committee of lunatic, etc.
1591. Contents of petition.
1592. Court may authorize partition.
1533. Effect of releases.
1594. When the State is interestedi.
1595. Exemplified copy of judgment may be recorded.

$ 1532. When action for partition may be brought. 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.

$ 1533. Action for partition by remainderman. 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 be made except by and with the consent in writing, to be acknowledged or prored 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 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. (Am's Ca. 683 OP 1887.1

$ 1534. Id. ; by an infant. 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. Guardian ad litem; low appointed. A guardian ad litem for an infant party, in an action for partition, can be appointed only by the wurt.

$ 1536. Security. The security to be given, by the guardian ad litem for an infant party, in an action for partition, must be a bond, to the people of this State, executed by him and one or more sureties, as the court directs, in a sim 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. [Au'd Ch. 404 of 1884.]

$ 1537. When heir may maintain action for partition of devised property. 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.

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§ 1538. Who must be parties.-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. But no person, other than a joint tenant, or a tenant in common of the property shall be a plaintiff in the action. Whenever an action for the partition of real property shall be brought before the expiration of three years from the time when letters of administration or letters testamentary, as the case may be, shall have been issued upon the estate of the decedent from whom the plaintiff's title is derived, the executors, or administrators, as the case may be, if any, of the estate of said decedent, shall be made parties defendant. In case no executor or administrator of such decedent shall have been appointed at the time said action is begun, that fact shall be alleged in the complaint. The executors or administrators, if any, as the case may be, of a deceased person, who, if living, should be a party to such action, shall be made parties defendant therein, and in case no executor or administrator of such deceased person shall have been appointed, that fact shall be alleged in the complaint. Where the interlocutory judgment directs a sale of the premises sought to be partitioned, or of some part thereof, the judgment may, in the discretion of the court, direct that the premises so sold pursuant to such interlocutory judgment shall be free from the lien of every debt of such decedent or decedents, except debts which were a lien upon the premises before the death of such decedent or decedents. When the action is brought before three years have elapsed from the granting of such letters of administration or letters testamentary, as the case may be, upon the estate of the decedent from whom the plaintiff derived his title, and the interlocutory judgment directs, as above provided, that the premises shall be sold, free from the lien of debts, the final judgment shall direct that the proceeds of the sale remaining after the payment of the costs, referee's fees, expenses of sale, taxes, assessments, water rates, and liens established before the death of the decedent, including any sum allowed to a widow in satisfaction of her right of dower, therein directed to be paid, be forthwith paid into court by the referee making such sale by depositing the same with the county treasurer of the county, in which the trial of the action is placed, to the credit of the parties entitled thereto, to await the further order in the premises. Where the action is brought before three years have elapsed from the granting of letters of administration or letters testamentary, as the case may be, upon the estate of a deceased person, who, if living, should be a party to the action, and the interlocutory judgment directs, as above provided, that the premises shall be sold, free, from the lien of debts, the final judgment shall direct that the share of the proceeds of such sale, which would have been his, if living, be paid into court by such referee, by depositing the same with such county treasurer, to await the further order in the premises Upon the certificate of the surrogate of the county of which the decedent was, at the time of his death, a resident, showing that three years have elapsed since the issuing of letters testamentary or letters of administration, as the case may be, upon the estate of said decedent, and that no proceedings for the mortgage, lease or sale of the real property of said decedent for the payment of his debts or funeral expenses, or both, is pend. ing, and upon the certificate of the county clerk of the county where the real property sold under the interlocutory judgment is located, showing that no notice provided for in section twenty-seven hundred and fifty-one of the code of civil poocedure has been filed in his office, the court, wherein the final judgment was made shall, upon the application of any party to said action, make an order directing the county treasurer to pay to said party from said deposit, the amount to which he is entitled under the said final judgment, with the accumulation thereon, if any, less the fees of said county treasurer. Any party to such action may, at any time after final judgment, upon notice to the executors or administrators of the decedent from whom the party applying derived his share or interest, apply to the court in which said action is pending for leave to withdraw the deposit or share of the deposit, adjudged in the final judgment to belong to him; and, upon said

application, the court may, in its discretion, make an order directing the county treasurer to pay over to said party the deposit, or the share of the deposit, adjudged in the final judgment to belong to him, but said order sball not be made until said party so applying shall have furnished a bond to the people of the state of New York in the penalty of twice the amount of the deposit sought to be withdrawn, with two or more good and sufficient soreties, approved by the judge or justice of the court making such order, and filed with such approval, in the office of the clerk of the county in which such action is pending, to the effect that the said party so withdrawing said deposit will pay any and all claims, not exceeding the amount of said deposit, when thereunto required by order of the court or by order of the surrogate or of the surrogate's court in a proceeding to mortgage, lease or sell the real property of such decedent. But where final judgment shall be rendered in any action for partition after three years have elapsed from the granting of letters of administration or letters testamentary, as the case may be, upon the estate of the decedent from whom plaintiff derived titlen

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