Kellogg, John M., J.
The defendant Gillette, the owner of a judgment recovered August 16, 1893, against the plaintiff’s grantor, asks that provision be made in the judgment of partition herein for the payment of said judgment, to which the plaintiff objects on the ground that he is a subsequent purchaser of the premises from the judgment debtor, and that [633]*633said judgment ceased to be a lien August 15, 1903. Administration was had upon the estate of the judgment debtor March 16, 1900, and by virtue of section 1380 of the Code of Civil Procedure the statutory lien of the said judgment, which otherwise would have expired August 15, 1903, was continued three years and six months from the date of such administration and terminated September 15,1903. In partition it is optional with the plaintiff, under section 1540 of the Code of Civil Procedure, whether he will make a party having a lien upon an undivided share or interest in the property a defendant or not. The plaintiff made the then owner of this judgment a party, serving upon him a verified complaint June 6, 1903, alleging the said judgment, that the plaintiff is the owner of an undivided one-sixth of said premises subject to the lien of said judgment, and that the premises consist of a farm which cannot be divided but must be sold, and asks judgment for the sale of the farm, and that the proceeds be divided between the respective parties according to their shares, rights and interests. At the time the summons and complaint were served the owner of the said judgment had 110 days remaining, which gave ample time to collect the judgment by execution before the lien expired. On June 12, 1903, a supplemental and amended complaint was served by the plaintiff containing substantially the same allegations and prayer for relief, and on August first another amended complaint was served containing substantially the same allegations and prayer for relief. When this latter complaint was served there were but forty-five days remaining, not giving time to obtain leave to issue execution and effect a sale on the judgment before the statutory time expired, and an execution ought not to issue against an estate for the sale of real estate unless there is sufficient time remaining before the statutory lien expires in which to make the sale. Darling v. Littlejohn, 35 N. Y. St. Repr. 516.
So we must conclude that at that late day, when the owner of the judgment had no legal remedy by which he could collect out of this real estate before the expiration of the lien, the plaintiff was still recognizing that the owner of the judg[634]*634ment was entitled to be paid out of the proceeds of the sale. The defendant Orapser, the owner of the judgment at the time the action was brought, having transferred it to the defendant Gillette, the latter obtained from this court an order dated August 15, 1903, bringing him into the action as a defendant, and upon that date he serves an answer alleging that the judgment has been transferred by the defendant Orapser to him, and that he is the owner thereof, and asks that the same be paid to him. Thereupon the plaintiff serves an amended complaint, verified the 19 th day of August, 1903, alleging said judgment and its transfer to the defendant Gillette, and that after the commencement of this action and on the tenth day of August, the said Gillette applied to the surrogate of Eranklin county for leave to issue an execution, which leave was denied upon the ground that the lien of said judgment would expire on the sixteenth day of August, and that by virtue of said adjudication by said surrogate, the plaintiff being a purchaser in good faith, his interest in said premises is free and clear from the lien of said judgment, to which the defendant Gillette served an amended answer insisting that said judgment should be paid in this action. It is significant that before this action was commenced the defendant Orapser had served on plaintiff and others interested a notice of motion asking leave to issue execution upon this judgment, returnable before this court on the sixth day of June, but said motion for some reason was continued until the sixth day of July, when leave was granted. On the 14th day of July, 1903, Gillette filed a petition with the Franklin county surrogate for leave to issue an execution upon said judgment, which matter for some reason continued along until the 10th day of August, 1903, when the' surrogate denied said application upon the ground that the lien of said judgment would expire before a sale could be had upon execution. The fact that this action was pending and the proceedings therein and the effect thereof do not seem to have been before or considered by the surrogate, so that the decree only adjudges that upon the facts appearing before him an execution ought not to issue because a sale under it [635]*635could not take place until after the statutory lien had expired. But the question here is whether by reason of the particular circumstances existing in this action the plaintiff is precluded from denying that the defendant Gillette is entitled to have his judgment paid out of the proceeds of the sale in this action. With confidence the defendant cites Caswell v. Kemp, 41 Kun, 434, which holds that a defendant in a partition case who holds a judgment against the ancestor of the tenants in common is entitled to have it paid out of the proceeds even though the statutory lien expires during the pendency of the action, saying that the liens existed at the time the suit was commenced, and the interests must be determined with reference to the rights of the parties as they existed at the commencement of the action. With equal confidence the plaintiff refers to Nutt v. Cuming, 155 N. Y. 309, where in an action of foreclosure the owner of a subsequent judgment was made a defendant, and a decree of foreclosure and sale in the usual form was made before the statutory lien expired, but the sale did not take place till five years later, and after the statutory lien had expired, and upon an application for the surplus moneys it was held that the lien having expired the judgment creditor had no claim upon the surplus moneys. The opinion seems to proceed upon the effect of Buie 64, which provides that any person having a lien at the time of sale may apply for the surplus moneys, and also upon the theory that the owner of the mortgage was simply proceeding against the property for the payment of •his debt, and that the surplus arose as an incident to that proceeding, and was not such a bringing of the fund into a court of equity that the owner of the judgment could assert his rights as of the time of the commencement of the action, but must rely upon the situation as he finds it when he seeks his remedy. While a majority of the court do not refer to Caswell v. Kemp, the opinion draws a clear distinction between that case and the one then under consideration. The « dissenting opinion refers to it with confidence. There is a broad distinction with reference to such a judgment between an action of partition and an action of foreclosure, especially [636]*636where the action of partition is brought by the owner of the share in the property against which the judgment is a lien. In such a case he brings all the parties interested in the property and the property itself into a court of equity to be distributed according to the legal and equitable rights and interests of the parties.
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Kellogg, John M., J.
The defendant Gillette, the owner of a judgment recovered August 16, 1893, against the plaintiff’s grantor, asks that provision be made in the judgment of partition herein for the payment of said judgment, to which the plaintiff objects on the ground that he is a subsequent purchaser of the premises from the judgment debtor, and that [633]*633said judgment ceased to be a lien August 15, 1903. Administration was had upon the estate of the judgment debtor March 16, 1900, and by virtue of section 1380 of the Code of Civil Procedure the statutory lien of the said judgment, which otherwise would have expired August 15, 1903, was continued three years and six months from the date of such administration and terminated September 15,1903. In partition it is optional with the plaintiff, under section 1540 of the Code of Civil Procedure, whether he will make a party having a lien upon an undivided share or interest in the property a defendant or not. The plaintiff made the then owner of this judgment a party, serving upon him a verified complaint June 6, 1903, alleging the said judgment, that the plaintiff is the owner of an undivided one-sixth of said premises subject to the lien of said judgment, and that the premises consist of a farm which cannot be divided but must be sold, and asks judgment for the sale of the farm, and that the proceeds be divided between the respective parties according to their shares, rights and interests. At the time the summons and complaint were served the owner of the said judgment had 110 days remaining, which gave ample time to collect the judgment by execution before the lien expired. On June 12, 1903, a supplemental and amended complaint was served by the plaintiff containing substantially the same allegations and prayer for relief, and on August first another amended complaint was served containing substantially the same allegations and prayer for relief. When this latter complaint was served there were but forty-five days remaining, not giving time to obtain leave to issue execution and effect a sale on the judgment before the statutory time expired, and an execution ought not to issue against an estate for the sale of real estate unless there is sufficient time remaining before the statutory lien expires in which to make the sale. Darling v. Littlejohn, 35 N. Y. St. Repr. 516.
So we must conclude that at that late day, when the owner of the judgment had no legal remedy by which he could collect out of this real estate before the expiration of the lien, the plaintiff was still recognizing that the owner of the judg[634]*634ment was entitled to be paid out of the proceeds of the sale. The defendant Orapser, the owner of the judgment at the time the action was brought, having transferred it to the defendant Gillette, the latter obtained from this court an order dated August 15, 1903, bringing him into the action as a defendant, and upon that date he serves an answer alleging that the judgment has been transferred by the defendant Orapser to him, and that he is the owner thereof, and asks that the same be paid to him. Thereupon the plaintiff serves an amended complaint, verified the 19 th day of August, 1903, alleging said judgment and its transfer to the defendant Gillette, and that after the commencement of this action and on the tenth day of August, the said Gillette applied to the surrogate of Eranklin county for leave to issue an execution, which leave was denied upon the ground that the lien of said judgment would expire on the sixteenth day of August, and that by virtue of said adjudication by said surrogate, the plaintiff being a purchaser in good faith, his interest in said premises is free and clear from the lien of said judgment, to which the defendant Gillette served an amended answer insisting that said judgment should be paid in this action. It is significant that before this action was commenced the defendant Orapser had served on plaintiff and others interested a notice of motion asking leave to issue execution upon this judgment, returnable before this court on the sixth day of June, but said motion for some reason was continued until the sixth day of July, when leave was granted. On the 14th day of July, 1903, Gillette filed a petition with the Franklin county surrogate for leave to issue an execution upon said judgment, which matter for some reason continued along until the 10th day of August, 1903, when the' surrogate denied said application upon the ground that the lien of said judgment would expire before a sale could be had upon execution. The fact that this action was pending and the proceedings therein and the effect thereof do not seem to have been before or considered by the surrogate, so that the decree only adjudges that upon the facts appearing before him an execution ought not to issue because a sale under it [635]*635could not take place until after the statutory lien had expired. But the question here is whether by reason of the particular circumstances existing in this action the plaintiff is precluded from denying that the defendant Gillette is entitled to have his judgment paid out of the proceeds of the sale in this action. With confidence the defendant cites Caswell v. Kemp, 41 Kun, 434, which holds that a defendant in a partition case who holds a judgment against the ancestor of the tenants in common is entitled to have it paid out of the proceeds even though the statutory lien expires during the pendency of the action, saying that the liens existed at the time the suit was commenced, and the interests must be determined with reference to the rights of the parties as they existed at the commencement of the action. With equal confidence the plaintiff refers to Nutt v. Cuming, 155 N. Y. 309, where in an action of foreclosure the owner of a subsequent judgment was made a defendant, and a decree of foreclosure and sale in the usual form was made before the statutory lien expired, but the sale did not take place till five years later, and after the statutory lien had expired, and upon an application for the surplus moneys it was held that the lien having expired the judgment creditor had no claim upon the surplus moneys. The opinion seems to proceed upon the effect of Buie 64, which provides that any person having a lien at the time of sale may apply for the surplus moneys, and also upon the theory that the owner of the mortgage was simply proceeding against the property for the payment of •his debt, and that the surplus arose as an incident to that proceeding, and was not such a bringing of the fund into a court of equity that the owner of the judgment could assert his rights as of the time of the commencement of the action, but must rely upon the situation as he finds it when he seeks his remedy. While a majority of the court do not refer to Caswell v. Kemp, the opinion draws a clear distinction between that case and the one then under consideration. The « dissenting opinion refers to it with confidence. There is a broad distinction with reference to such a judgment between an action of partition and an action of foreclosure, especially [636]*636where the action of partition is brought by the owner of the share in the property against which the judgment is a lien. In such a case he brings all the parties interested in the property and the property itself into a court of equity to be distributed according to the legal and equitable rights and interests of the parties. And where the judgment is a lien upon only his share, it being entirely optional with him whether to bring in the judgment creditor or not, it must be that when he brings him in it is for a purpose, and when he recognizes the rights of the judgment creditor and states his interest in the premises, and asks that the property be divided according to the respective interests, he must, so far as he is concerned, he bound by his act. We can well see why a plaintiff in foreclosure, who has no interest in the judgment or in the property or fund from which it must be paid, but is only proceeding to get his own, cannot determine for the other parties who have no connection with him whether an outside judgment shall be paid from the proceeds or not; but when in partition, the plaintiff, against whose share alone the judgment is a lien, at a time when proceedings are pending for leave to issue execution, the object of which is to sell his property, brings an action making the judgment creditor a party, seeking to have him paid out of the proceeds of the sale of his share only, it seems that he takes a position that he cannot recede from. It would be unjust and inequitable in this case to continue the judgment creditor in the action with a promise of payment as a result of the suit until the time arrives when he cannot enforce his debt in any other way, and then amend the complaint and leave him without remedy. It is true that when an amended pleading is properly served it supersedes and takes the place of the other pleading, and becomes the pleading in the action. Nevertheless, the party by his former pleading may estop himself from changing his position or course, especially where his " former pleading has caused the adverse party to sleep away his rights in reliance upon it. If the original complaint, or either of the amended complaints down to August first,stands, the plaintiff would be estopped from disputing or denying the [637]*637right of this defendant to have the judgment paid from the proceeds of the property. It is contended, however, by the plaintiff that in Caswell v. Kemp, supra, the judgment was paid out of the shares of the heirs of the judgment debtor himself, they being "before the court, and the court having in hand the funds which as between them and the creditor belonged to the latter irrespective of the lien of the judgment, and that such payment was made in order to prevent circuity of action, but that here the question is between a purchaser in good faith of the premises and the owner of the judgment. We do not think, however, that under the particular circumstances of this'case the distinction, if it exists, can benefit the plaintiff. Without, therefore, considering that Caswell v. Kemp applies to and controls in every action of partition, I find that in this case the plaintiff, by the original and other complaints down to the time he served the last amended complaint, had so far brought this action for the benefit of the owner of the judgment and recognized him as a party to be benefited by the sale, and by continuing such recognition until it was too late with the utmost expedition to resort to any other remedy, that he is now estopped and concluded from raising any objection to the payment of the judgment in this action. Gillette having succeeded to the rights of the defendant Crapser, it was unnecessary for him to be made a party defendant as he succeeded to and occupied the position of Crapser, and the only advantage he could gain by being a defendant was to have the money paid to him instead of to Crapser. If Gillette had not been made a party, the plaintiff’s power to amend his complaint was gone and he could only amend so far as the parties interested in this judgment are concerned by an application to the court, and it is fair to assume that no court as a matter of discretion would allow him to change his position in respect to this judgment after he had caused the judgment creditor to sleep away his other remedies.
But the plaintiff seeks to justify his position by the decision of the surrogate denying leave to issue the execution. In other words, after action brought, and after he admitted [638]*638the rights of the judgment creditor, he claims that two facts ((1) the surrogate’s decree, and (2) the expiration of the ten years) deprive the judgment of force. The proper way for a plaintiff or defendant to take advantage of facts constituting a new ground of action or defense arising after action brought is by an application to the court for leave to serve a supplemental complaint or answer. Bo such leave was granted in this case, and it is assumed upon the facts appearing that none would have been granted. The plaintiff, therefore, could not change his position on account of those subsequent events, and change the action from one brought for his own and the judgment creditor’s benefit to one hostile to the latter by a so-called amended complaint. The other complaints, therefore, so far as they relate to the rights of this judgment creditor are not necessarily superseded or changed by the last complaint served. Such change could only properly be made by a supplemental complaint served by permission of the court. Otherwise even an amended pleading only speaks as of the time of the commencement of the action and the rights of the parties are determined as of that time. Code Civ. Pro., § 544; Merz v. Interior C. & I. Co., 20 Misc. Rep. 378.
The usual findings and interlocutory judgment may be prepared and served, and if not agreed upon may be settled upon five days’ notice, and will direct the payment of the judgment to Gillette from the' plaintiff’s one-sixth interest in said premises, together with costs to said defendant.
Judgment accordingly.