Sprague v. Engelbrecht

29 Misc. 464, 61 N.Y.S. 952

Opinion

Smith, J.

If power were granted to make an allowance herein to both plaintiff and defendant I should allow plaintiff $300 and the defendant $200, inasmuch as defendant succeeded upon the ■question whether there should be a sale or an actual partition. As I construe the case, I am not permi^ed to award costs and an ¡allowance to the defendant on actual partition; hence I think it fair that no allowance be granted to the plaintiff. I think if •defendant pays one-half of the plaintiff’s costs, about the same result would be reached as if there had been a sale and allowances made upon the basis above suggested.

Ordered accordingly.