Danvers v. Dorrity

14 Abb. Pr. 206

• Court: New York Supreme Court
• Decided: January 15, 1862
• Status: Published

Opinion

Clerke, J.

The right to a partition of undivided real estate is not, I conceive, absolute. The relations of the joint-owners towards each other may be such that it would be exceedingly unjust to grant to any one owner such a right,—unjust not only to the other owners, but productive of injustice to creditors of other owners. Besides, no man has a right to make another a party to an action when the controversy is in a course of settlement in another court.

This is precisely the position of affairs between the parties to this action. The real estate sought to be divided constituted a part of the capital of the copartnership which existed between them, and although it has not been positively proved that there are any liabilities of the firm remaining due, yet it would not be safe to take the testimony of any one witness upon that point as conclusive. Nothing but a final accounting can be satisfactory on that point, or on the question of the claims of the respective parties.

The action pending in the Superior Court involves the property now sought to be divided, and until that action is terminated, it would not be proper to entertain any suit for the partition of it. The commencement of this action was totally unnecessary.

The complaint should be dismissed as to all the defendants, but with costs only in favor of Dorrity.