Larder v. Granger — 51 N.Y. St. Rep. 185

Majority

p. 185

William Larder, App’lt, v. Elihu J. Granger, Impl’d, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Reference — Partition.

A reference of the issues should not be ordered in an action of partition, as the issues in such an action are triable by jury if either party so-desires.

Appeal from order of reference

Action for partition. After joinder of issues defendant Granger moved for an order of reference to take and state the accounts of the parties upon all the pleadings and proceedings, which motion was opposed by the plaintiff.

Wm. North, for app’lt; E. J. Granger (E. R. Vollmer, of counsel), for resp’t; E. E. Sprague, for deft., Title Guarantee & Trust Co.

This is an appeal from an order of reference, and we think the order is erroneous.

The action is for the partition of real property, and the issue formed by the pleadings is triable by jury if either party so desires.

The order should be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Pratt, J., not sitting.