Valentine v. Point O'Woods Ass'n

171 A.D. 926

Opinion

The partition suit being quasi in rem, the policy of the law is to have all interests before the court (Code Civ. Proc. § 452), especially derivative rights from a common ancestor. After a motion to intervene has been noticed and then adjourned, and is pending, the suit may not be unqualifiedly withdrawn and discontinued. Hence the discretion of the court at Special Term to set aside such discontinuance, and to permit the interveners to come in and defend, notwithstanding this attempt to drop the suit being based on grounds and considerations peculiar to a partition suit, was rightly exercised. The order setting aside the discontinuance, restoring the Us pendens and admitting the interveners to come in and defend, is, therefore, affirmed, with ten dollars costs and disbursements. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.