In re Cavanagh

14 Abb. Pr. 258, 23 How. Pr. 358

Opinion

By the Court.

Footnotes

•

*—Clerke, J.

I think it would be contrary to that caution upon which we have always acted in relation to applications of this kind, to compel the purchaser in this case to complete his purchase.

There seems to be a considerable diversity of opinion whether a partition of real property can now be effected by a petition.

According to the opinion of Mr. Justice Pratt, in Groghan a. Livingston (17 N. Y., 218; S. C., 6 Abbotts’ Pr., 350), this mode of proceeding is abolished. He deems the proceedings by summons and complaint the only existing form of remedy for partition. This might be considered a dictum, not having been necessary to the decision of the question before the court at the time. But the point seems to have been carefully considered by the judge, and his opinion is unhesitating and unqualified. The same opinion has been expressed by other j udges, and it is a very prevalent one in the profession. Without venturing now to say that it is well founded, the doubts referred to make it safer and more in conformity with our usual course, not to compel the purchaser under such circumstances to complete his purchase. I think the order should be reversed, the purchaser relieved, and his deposit repaid. †

Present, Ingraham, P. J., Leonard and Clerke, JJ.

•

On a subsequent application by the purchaser in the same proceeding, At Chambers, April, 1862, the petitioners were ordered to pay the costs and expenses of the purchaser, and that such costs and expenses, on being ascertained, should be charged upon the petitioners’ interest in the land, and that the purchaser have execution therefor.

Bogadus & Brown, for the motion, cited 2 Paige, 586 ; 3 Edw., 69 ; 6 Beav., 97.

Charles D. Miller, opposed.

Clerke, J., ordered that it be referred to Maurice Leyne, Esq., to ascertain the costs and expenses of the purchaser, and report the same; that the petitioner pay the purchaser or his attorney, upon the confirmation of the report, the amount so ascertained; that an execution might be issued therefor, or that the same might be paid from any proceeds of said premises belonging to the petitioner upon any sale that might thereafter be made under the order or direction of this court.