Lane agt. Van Orden. made this clear provision for costs, and which is applicable to the present case, because the plaintiff has failed as to both defendants, the section proceeds to state when costs are in the discretion of the court, and that is when the action is brought against two or more defendants in which "the plaintiff is entitled to costs against one or more, but not against all of them." In such a case it is declared "none of the defendants are entitled to costs, of course;" and it is further provided that "in that case costs may be awarded, in the discretion of the court, to any defendant, against whom the plaintiff is not entitled to costs, when he did not unite in an answer, and was not united in interest, with a defendant against whom the plaintiff is entitled to costs." As the Code reads both defendants are entitled to costs, and such claim can only be disallowed upon the ground that the appearance by separate attorneys was in bad faith and for the sole purpose of incurring costs (Williams agt. Cassidy, 59 How., 490). The burden of proving this rests upon the plaintiff, and I do not think that the facts justify such a conclusion. The attorneys have no connection in business; their offices are separate; the undertakings upon the arrest were separate, and as one of the defendants may have been guilty of fraud and the other not, they were justified in making a separate defense by different attorneys. Having done so and succeeded they are both entitled to costs for the reason that the proof submitted does not justify the conclusion that the separate appearance was in bad faith. The next question is, should there be an extra allowance? I think that this may be deemed "a difficult and extraordinary case" under section 3253 of the Code. It certainly presented a difficult question of law upon which the case is to be reviewed, and upon the facts the evidence was conflicting. It is said that the case is a hard one for the plaintiff, and therefore no allowance should be made. The difficulty with this suggestion is that it presents a consideration outside of the statute, and which, if adopted as sound, compels the court Zorntlein agt. Bram. to balance equities upon every application of this character. Not only would this view of the statute impose great labor upon a judge, but it overrides the statute which gives the extra costs "in a difficult and extraordinary case." This part of the motion is, therefore, also granted, but there must be only an allowance of five per cent upon the amount sought to be recovered, $162.70, with interest from August 1, 1881, one-half of which is allowed to each defendant. No costs are allowed upon this motion. N. Y. SUPERIOR COURT. WILLIAM ZORNTLEIN agt. GEORGE ADAM BRAM and CLARA BRAM. Husband and wife-When tenants in common in lands conveyed to them jointly-When grantee in a conveyance by wife entitled to a partition. Where, since the act of 1860, concerning the rights and liabilities of husband and wife, lands have been conveyed to a husband and wife jointly, without any statement in the deed as to the manner in which the grantee shall hold, they are tenants in common, and not tenants by entireties; and the grantee in a conveyance by the wife of an individual half of the premises is entitled to a partition. Special Term, May, 1882. TRUAX, J. — This action was brought to partition the premises mentioned in the complaint. I have found that in the year 1878 the premises were conveyed to Jacob Bram and Babeta Bram; that at the time of the making of said conveyance Babeta Bram was the wife of Jacob Bram, although that fact was not mentioned in the conveyance; that thereafter Babeta Bram conveyed one individual half of said premises to the plaintiff; that thereafter, and after the last mentioned deed had been recorded, said Jacob Bram and Zorntlein agt. Bram. Babetta Bram conveyed said premises to the defendant, George Adam Bram, and that this last mentioned deed was recorded before the commencement of this action. The learned counsel for the defendants contends that the plaintiff cannot maintain this action because the said Jacob and Babeta Bram were seized of an entirety in said premises, and not as joint tenants or tenants in common; that at common law during the lives of both parties, the husband (Jacob Bram) was entitled to the possession of the property and to the rents and profits of the freehold estate, and the wife (Babeta Bram) had only a mere right of survivorship (Goelet agt. Gori, 31 Barb., 314; Wright agt. Sadler, 20 N. Y., 320; Barber agt. Harris, 15 Wend., 175; Dickinson agt. Codwise, 1 Sand. Ch., 214; Dias agt. Glover, Hoff. Ch., 71; Roger agt. Benson, 5 Johns. Ch., 431; Miller agt. Miller, 9 Abb. [N. S.], 444; Jackson agt. Stivers, 16 Johns., 110; Doe agt. Howland, 8 Cow., 277); and that the married woman's acts of 1848, 1849, 1860 and 1862 have not changed this rule of the common law (Freeman agt. Barber, 3 T. & C., 574; Beach agt. Hollister, 3 Пun, 519). The precise question in this case has lately been passed upon by three of the judges of the court of appeals (See Meeker agt. Wright, 76 N. Y., 262). Judge DANFORTH, in an opinion which was concurred in by RAPALLO and MILLER, JJ., criticised and disapproved of many of the cases above cited, and held that, where since the passage of the act of 1860, concerning the rights and liabilities of husband and wife, lands have been conveyed to a husband and wife, jointly, without any statement in the deed as to the manner in which the grantees shall hold, they are tenants in common. It is true that the case was decided upon another point, but it seems to me that the reasoning of Judge DANFORTH is logical, and is but interpreting the married woman's acts in the same liberal spirit in which they were enacted. The case of Meeker agt. Wright was decided in February, 1879, since which time the legislature of this state has passed an act which declares that VOL. LXIII 31 The People agt. Livingston. whenever husband and wife shall hold any lands or tenements, as tenants in common, joint tenants, or as tenants by entireties, they may make partition or division of the same between themselves, and such partition or division shall be valid and effectual (Chap. 472, Laws 1880). Judgment of partition and sale is ordered, with costs. * * * SUPREME COURT. THE PEOPLE agt. JOHN H. LIVINGSTON. Nuisance-in obstructing highway - Indictment for, containing averments of continuance-Verdict of guilty — Error · where there is no evidence of continuance - Highway sought to be established by evidence of user — What must be shown - Facts held to be insufficient to establish a highway. Upon the trial of an indictment (containing averments of continuance) for a nuisance in obstructing a public highway, if there is no evidence of continuance a general verdict of guilty is error; and the general term will reverse on that ground, although on the trial attention was not called to the point. Unless the locus in quo is shown to be a public highway it is the duty of the court on the trial of such an indictment to direct an acquittal (LANDON, J.). Where a highway is sought to be established by evidence of user it must be shown to exist over the route described in the indictment (LANDON, J.). On the facts of the case, held insufficient to establish a public highway (LANDON, J.). Third Department, General Term, May, 1882. Before LEARNED, P. J., LANDON and BOARDMAN, JJ. THE defendant was indicted for nuisance in erecting and continuing obstructions on an alleged public highway, three rods wide, located in Berne, Albany county. He was tried in the court of sessions. The plot of ground through which the highway was claimed is triangular in form, being about threcquarters of an acre one side, the stone wall being 476 feet in The People agt. Livingston. length; another a highway some 238 feet, and Thompson's lake being the third boundary. The origin of the privilege, which it was claimed ripened into a highway, was about fifty years ago a stone wall, and in the indictment stated to be the southerly line of the alleged highway, was built. It was constructed with the consent of the original owner, grandfather Secor, as he was called on the trial. The conversation in which it was arranged, as related by his grandson (and the only testimony on the subject), fully explains the situation: "I heard my grandfather talk about building the fence, and before the wall was built; it was when they came to lay the stone wall." Q. Then you say that those neighbors had assembled to build a stone wall, and then, having come for that purpose, your grandfather made a bargain with them to build it? A. Gave them the privilege. Q. Do you remember what anybody said in that conversation except your grandfather? A. Nothing, only they all turned out and helped build the fence. Q Do you remember what your grandfather said? A. He said, "Now there you can have that privilege and go there when you are a mind to." Q. You said it was a privilege to wash sheep? A. Of course; they go there and drive their sheep; my grandfather said, "Now if you will build that stone wall you can have the privilege to drive sheep there and wash them; he also said that for building the sheep pen and the wall they could have the privilege of washing sheep there." * * * The way claimed in the indictment was never laid out as a highway, or fenced or repaired, nor had the town ever done any act to recognize it as a public highway. The people, on the trial, relied entirely upon a public user for over twenty years to establish the highway. Other facts are stated in the opinions, also as to charge of court and other matters in points of counsel. The case was given to the jury who returned a verdict of |