Bullwinker v. Ryker — 12 Abb. Pr. 311

Majority

p. 311

BULLWINKER a. RYKER.

Supreme Court, First District;

Special Term, March, 1861.

Headnote

Partition.—Complaint.

In an action for a partition, defendants not having answered, cannot be required to account for rents, if the complaint did not specifically ask such relief.

Motion to confirm referee’s report.

This was an action brought against several defendants, to obtain a partition of certain premises in the city of New York. None of the defendants having answered, the action was referred to a referee. It appeared that the defendant, Mrs. Ryker, who was one of the owners, had been in possession of a portion of the premises; and other portions had been rented to other tenants. An agent of the owners had collected the rents from the tenants other than Mrs. Ryker, and had credited her with her share, and paid over to the other owners their shares.

The plaintiffs complaint did not ask for an accounting as to Mrs. Ryker’s rent; but the referee, upon these facts, found that Mrs. Ryker was indebted to the other owners for rent in the sum of $210, over and above her credits.

p. 312

To this report the defendant Eyker excepted, on the ground that the rent was not properly a matter of accounting in this action; and that no greater relief could be granted by the • court than was demanded in the complaint. The plaintiff-moved to confirm the report.

Chesters & Kennaday,

for the motion, contended that it was not necessary to set out liens in complaint; that the referee was to ascertain the liens for the court, so that a proper distribution could be made ; and that the claim for rent was an equitable'lien, and a court of equity would direct an accounting between owners in common, (Green a. Putnam, 1 Barb., 500 ; Hannan a. Osborn, 4 Paige, 336.)

Shaffer & Huff, for the defendant Ryker.

I. The court has only power to make partition, and allow general or specific liens against the property. (Code, § 448; 3 Rev. Stat., 5 ed., 614.)

II. Rent is not a lien. It is simply a debt. The only remedy of the other owners is an action against Mrs. Ryker for an accounting. (Burhans a. Burhans, 2 Barb. Ch., 398 .)

HI. The judgment being by default, plaintiffs are entitled to no greater relief than claimed in their complaint. (Code, § 215.)

—The complaint not asking specifically that the defendant, Ann G. Ryker,, account for the rents, I think the exception to the referee’s report is well taken. I come to this conclusion with some hesitation, after an examination of the authorities.

Order accordingly. .