An heir at law suing to partition lands devised by his ancestor in a will executed before he was born, he being neither mentioned nor provided for therein, or by any other settlement, can join a cause of action against the grantees of the devisee to recover rents, issues and profits of the lands collected and retained by them. Such recovery of rents is plainly contemplated by section 1589 of the Code of Civil Procedure although all the parties to the action are not interested in the question. Schenck v. Schenck v. Furst (1910), 140 App. Div. 432, 125 N. Y. Supp. 506.

Where in partition no claim is made against any defendant for use and occupation no allowance can be made in favor of such of the defendants as have made improvements or paid taxes on the premises or any part thereof. Cardwell v. Clark (1916), 94 Misc. 433, 158 N. Y. Supp. 300.

Where one of the defendants in a partition action was to be charged with the rental value of the premises, the lease thereof formerly taken by him would be prima facie proof of such rental value, and interest would be properly chargeable thereon. Because a tenant in common was in possession of the whole or a part of premises sought to be partitioned affords no basis for compelling him to pay for use and occupation and he cannot be held liable therefor unless he had ousted his cotenants or had agreed to pay rent. Burchell v. Burchell (1916), 96 Misc. 600, 160 N. Y. Supp. 805, affd., 178 App. Div. 924, 165 N. Y. Supp. 1078.

Section 1531 of the Code of Civil Procedure limiting a recovery of rents and profits or the value of use and occupation to a term not exceeding six years applies only to actions of ejectment, and it seems, that rents for a longer period may be recovered in an action for partition. Adams v. Bristol (1908), 126 App. Div. 660, 111 N. Y. Supp. 231, affd., 196 N. Y. 510.

Subd. 4. Costs.

(Fiero, Spec. Act., 3rd Ed., pp. 1674-1678.)

The Court of Appeals will not interfere with the discretion of the Supreme Court in rendering judgment against the People of the State, a party defendant, for costs in an action for partition. Haley v. Sheridan (1907), 190 N. Y. 331.

In no event can the total allowance in actions for partition exceed five per centum upon the value of the subject-matter in

volved. For the purpose of fixing the allowance which may be made to the plaintiff, the value of the subject-matter involved is the value of the whole property, and for the purpose of fixing the allowance to any defendant, the value of that particular defendant's interest is the value of the subject-matter involved. The limitation that in no event shall the allowances to a plaintiff, or to a party or two or more parties on the same side exceed $2,000, means that the allowance to a plaintiff cannot exceed $2,000, and the allowance to all the defendants, considered as a class or "side," shall not exceed another $2,000. Warren v. Warren (1911), 203 N. Y. 250.

Under section 3253 of the Code of Civil Procedure providing for additional allowances in certain actions including partition, the total additional allowances in such action made to all parties cannot exceed five per cent. of the sum recovered or claimed or the value of the subject-matter involved. Van Meter v. Kelly (1910), 137 App. Div. 455, 121 N. Y. Supp. 874.

Although the total allowance given by the court in an action for partition cannot exceed five per cent. upon the value of the property involved, this does not include the statutory allowance under section 3252 of the Code of Civil Procedure, which follows a recovery" as a matter of course." Johnston v. Johnston (1914), 165 App. Div. 24, 151 N. Y. Supp. 65.

Under section 3253 of the Code of Civil Procedure, providing that in a partition suit an additional allowance may be made to the extent of five per centum of the value of the property partitioned, if an allowance of five per centum of the value of the property be made to the plaintiff, no allowance may be made to any defendant. If the plaintiff be allowed less than five per centum of the value of the property the defendants may be granted upon the value of their respective interests a per centum allowance which, added to the allowance made to the plaintiff, must not exceed five per centum of the value of the property partitioned. But under section 3254 of the Code of Civil Procedure the allowances to the plaintiff or to the defendants shall in no event exceed $2,000, and in no event shall the total allowance on both sides exceed $4,000. Servin v. Perry (1915), 168 App. Div. 243, 153 N. Y. Supp. 3.

The allowances to the parties in an action of partition may not

in the aggregate exceed five per cent. of the value of the property sought to be partitioned. No allowance in addition to the taxable costs may be granted to the guardian ad litem of infant defendants. having no personal interest in the proceeds of sale, and no additional allowance may be granted to the mortgagee. MacFarlane v. Brower (1909), 63 Misc. 183, 116 N. Y. Supp. 34.

In a case of actual partition defendant, as well as plaintiff, may be awarded costs, and an additional allowance. Story v. Lutkins (1912), 77 Misc. 17, 135 N. Y. Supp. 118.

All taxable costs and allowances are to be deducted from rent and income of the property before the division thereof between plaintiff and defendant, that is, each must pay his proportionate share of the costs, allowances and disbursements. Story v. Lutkins (1912), 77 Misc. 17, 135 N. Y. Supp. 118.

Where infant defendants in an action for partition have no personal interest in the properties involved, no allowance may be granted to their guardian, but they are entitled to their taxable costs. Fogarty v. Stange (1917), 101 Misc. 89, 166 N. Y. Supp.

691.

Where, on motion for final judgment in an action for the partition of real estate, it is conceded that some of the amounts to be deducted from the gross proceeds of sale in order to arrive at the net proceeds of sale divisible among the owners of shares cannot yet be determined, nevertheless allowances to parties in interest can be made. Fogarty v. Stange (1917), 101 Misc. 89, 166 N. Y. Supp. 691.

ARTICLE XV.

APPLICATION FOR MONEYS PAID INTO COURT.

(Fiero, Spec. Act., 3rd Ed., pp. 1678-1680.)

RULE 69. Order for payment of money out of court.

Rule 69. Order for payment of money out of court; requisites; necessity for notice; on whom notice to be served; accounts with trust company; requisite as to entries; filing statement of account; draft on trust company; requisites: filing countersigned order for payment of money out of court; effect on provisions of rule as to form of draft; application to order for periodical payments.

All orders directing the payment of money out of court shall direct the payment to be made to the person entitled to receive the same, and all checks or drafts for the payment of money out of court shall be drawn payable to the order of the person entitled to the moneys; and shall specify in what particular suit or on what account the money is to be paid out, and the

time when the order authorizing such payment was made. No order in any pending action, for the payment of money out of court, shall be made, except on regular notice or order to show cause, duly served on the attorneys of all the parties who have appeared therein, or filed notice of claim thereto. When moneys are deposited by the order of the court in any trust company, the entry of such deposit in the books of the company shall contain a short reference to the title of the cause or matter in which such deposit is directed to be made, and shall specify also the time from which the interest or accumulation on such deposit is to commence, where it does not commence from the date of such deposit. The secretary of the company shall, on or before the first day of February in each year, transmit to the Appellate Division of the Supreme Court in the department in which the trust company is located a statement of the accounts in each department, showing the amount on the last preceding first day of January, including the interest or accumulation on the sum deposited to the credit of each cause or matter. In every draft upon the trust company by the county treasurer or chamberlain, for moneys deposited with the said company, or for the interest or accumulation on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing such draft shall be stated; and the draft shall be made payable to the order of the person or persons entitled to the money. Any attorney or other person procuring an order for the payment of money out of court, shall obtain two certified copies of the order, both to be countersigned by the judge granting: the same; one copy shall be filed with the county treasurer and the other shall accompany the draft drawn upon the depository and be filed with it, and the several banks and other depositories having trust funds of the court on deposit, are forbidden to pay out any of such funds without the production and filing of such certified and countersigned copy order. This provision is not intended to dispense with any of the requirements of this rule, as to the form of the draft, nor to apply to a case where periodical payments are directed to be made, as provided for by the last sentence of this rule, after the first payment from such fund shall have been made under an order of the court, in the manner herein specified. Where periodical payments are directed to be made out of a fund deposited with such company, the delivery to the secretary of the company of one copy of the order authorizing the several payments shall be sufficient to authorize the payment of subsequent drafts in pursuance of such order.

Amended April 1, 1910.

A lien arising out of a judgment under which an execution purchaser claimed having been diverted from the real estate of defendant to its proceeds, and the same being insufficient for the payment in full of the three judgments which attached to the land simultaneously, the execution purchaser was entitled to have his lien satisfied in full and the balance of the proceeds directed to be paid to the owner of the other judgments. Hulbert v. Hulbert (1914), 86 Misc. 662, 149 N. Y. Supp. 568, affd., 165 App. Div. 858, 151 N. Y. Supp. 221, mod., 216 N. Y. 430.

PARTNERS, ACTIONS AGAINST AND BETWEEN.

See JOINT DEBTORS.

PENAL BOND, ACTION UPON.

See MISCELLANEOUS ACTIONS.

PENDENCY OF ACTION, NOTICE OF.
See REAL PROPERTY, PROVISIONS RELATING TO.

PENALTY OR FORFEITURE, ACTION BY PRIVATE PERSON FOR.

(Fiero, Spec. Act., 3rd Ed., pp. 1695-1704.)

Art. IV. When recovery had and to what extent.

ARTICLE IV.

WHEN RECOVERY HAD AND TO WHAT EXTENT.

(Fiero, Spec. Act., 3rd Ed., p. 1704.)

In an action by a city to recover a fine for the violation of a smoke ordinance it was proper to permit the jury to determine the fine under section 1898 of the Code of Civil Procedure. City of Buffalo v. George P. Ray Mfg. Co. (1910), 124 N. Y. Supp. 913.

Art.

PEOPLE, ACTIONS IN BEHALF OF.

(Fiero, Spec. Act., 3rd Ed., pp. 1705-1742.)

I. When and how action maintained.

II. Proceedings in the action.

IV. Action to vacate letters-patent.

V. Action for a fine, penalty or forfeiture, or upon a forfeited recognizance.

VI. Actions founded upon the spoliation or other misappropriation of

public property.

VII. Action to recover property escheated or forfeited.

VIII. Miscellaneous provisions relating to action on behalf of the people.