Majority
p. 952(29 Misc. Rep. 464.) SPRAGUE v. ENGELBRECHT et al. (Supreme Court, Special Term, Kings County. November, 1899.)
Headnote
Partition—Costs.The court has no power to award costs and an extra allowance to a defendant on actual partition, where he succeeded on the question of whether there should be a sale or an actual partition.
Partition proceedings by Susan A. Sprague against Mary L. Engelarecht and others. There was an actual partition decreed, and defendants applied for an extra allowance. Application denied.
George J. Greenfield, for plaintiff.
Calvin D. Van Name, for defendants.
If power were granted to make an allowance herein to both plaintiff and defendants, I should allow plaintiff $300 and the defendants $200, inasmuch as defendants succeeded upon the question whether there should be a sale or an actual partition. As I construe the. case, I am not permitted to award costs and an allowance to the defendants on actual partition; hence I think it fair that n© allowance be granted to the plaintiff. I think that, if defendants pay one-half of the plaintiff’s costs, about the same result would be reached as if there had been a sale, and allowances made upon the basis above suggested.
Ordered accordingly.