Lumb v. Lumb — 217 N.Y. 671

Majority

p. 671

Charles L. Lumb, Respondent, v. George J. Lumb et al., Individually and as Executors of George W. Lumb, Deceased, et al., Appellants, Impleaded with Others.

Headnote

Lumb v. Lumb, 154 App. Div. 944 , affirmed.

(Submitted February 21, 1916;

decided March 7, 1916.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 7, ,1913, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint. The plaintiff asks in his complaint a partition and division of real estate and an adjudication that certain parcels may be declared and decreed to be copartnership property, and that a division and partition of said real estate may. be had, and that the surviving partner, the plaintiff, be permitted to make

p. 672

an accounting of the proceeds of said copartnership, and that the balance of said real estate after an accounting be had be decreed to be real estate and be divided among the heirs by partition thereof. The following question was certified: “ Should the amended demurrer herein be sustained upon the ground that causes of action are united in the amended complaint herein, contrary to the provisions of section 484 of the Code of Civil Procedure ? ”

William L. Gellert, Frank B. Lown and George V. L. Spratt for appellants.

C. Morschauser and J. E. Mack for respondent.

Order affirmed, with costs, and question certified answered in the negative; no opinion.

Concur: Collin, Cuddeback, Seabury and Pound, JJ. Dissenting: Willard Bartlett, Ch. J., Chase and Cardozo, JJ.