the premises, and that the five defendant heirs were each entitled to an undivided one-tenth. This was admitted by the answer and also by a stipulation between the attorneys that the complaint correctly stated the interests of the parties. The referee’s report on title and the interlocutory judgment directing a sale followed the complaint and the stipulation as to the interests of the parties. The error was discovered by defendants, as they insist, where a purchaser at the sale successfully objected to the title on that and other grounds. Defendants moved below to set aside the interlocutory judgment and referee’s report, for relief from the stipulation, and for leave to amend their answer, which was granted without costs, the disbursements made, which were heavy because of the futile sale, etc., to be borne in proportion to the interests of the parties, one-sixth by plaintiff and five-sixths by defendants, and without permission to plaintiff to amend the complaint. Plaintiff’s attorney, opposing the motion, swore that the complaint was not so drawn by mistake, and that the stipulation was made by defendant’s attorneys after conference with plaintiff’s attorney, and was so done because, if they had insisted on their client’s rights, plaintiff would have amended the complaint by alleging the alienage of defendants, and would have contested their right to inherit at all.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and SCOTT, JJ.William E. Deane, for appellant.
Frederic W. Hinrichs, for respondents.
The order appealed from follows the suggestion made by this court upon the former appeal, when it was charitably assumed that the appellant’s attorney, as well as the attorneys for the respondents and the referee, had fallen into inadvertent error as to the law governing the devolution of the estate sought to be partitioned. The present appeal seems to have been taken because the appellant’s attorney thinks that the terms more favorable to him should have been imposed. In view of his extraordinary statement now made that he labored under no mistaken view of the law, but consciously and intentionally misstated the proportion of the estate to which his client was entitled, in the hope that the defendants would be misled thereby to their own disadvantage, but to the plaintiff’s advantage, the terms imposed might well have been made more onerous upon the appellant, and have been charged against the attorney personally. Since the respondents, however, are content with the present order, we do not feel called upon to modify it.
Order affirmed, with $10 costs and disbursements.