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and from and after that date the said business was conducted for the benefit of the said Seaman, Fuller and Burch; that said Seaman and Burch being each interested in said barge and in said business to the amount of three-eighths thereof, and the said Fuller to the amount of two-eighths thereof.
That, during the season of navigation, as aforesaid, in the prosecution of said business, a large amount of money was received and disbursed on account thereof; that, as near as the plaintiffs can now estimate the same, the whole amount earned by said barge for freight, &c., was $4,208.07.
That the expenses properly charged thereon did not exceed the sum of $2,676.01, leaving the net earnings of said barge, to be divided among the owners, the sum of $1,532.06.
That the said defendant, having received a much larger amount of money on account of said business than his just proportion, has neglected and refused to account for the same to the plaintiffs, and that the said copartnership firm is now justly indebted to the plaintiffs for moneys due to them on account of said business, and for moneys received by said defendant, and which he unjustly neglects and refuses to pay over and account for.
That the interest of the said defendant in said copartnership property is justly chargeable with a demand of $300, for moneys received by the defendant in the course of said business, and which should be paid to the plaintiff Seaman, and with a similar demand of $51.16 which should be paid by the defendant to the plaintiff Fuller.
That defendant neglects to account for and pay over the moneys thus received by him on account of said partnership transaction.
That the interest of said defendant in said barge is incumbered by a mortgage to the plaintiff Nathan N. Seaman to the amount of $600, for moneys advanced by said plaintiff Seaman to enable said defendant to purchase an interest in said barge, and which money is now due and unpaid.
That the said defendant is wholly insolvent, and has no property subject to execution, beyond his interest in said barge, which barge is now in the city of New-York.
That the plaintiffs are desirous of terminating said copartnership and closing up all its business and affairs, and disposing of all its property, and applying the proceeds thereof to the payment of all its debts and liabilities, of every name and nature, and dividing the surplus, if any there shall be, among the parties equitably entitled thereto, and that it is desirable for the interest of all the parties that the said barge should be disposed of before the opening of navigation in the spring of 1854.
The plaintiffs therefore demand the judgment of this court, that said copartnership be dissolved, and that an account be taken under the direction of this court of all its business and affairs; that all the property belonging to said partnership be sold, and the proceeds applied under the direction of this court to the payment of its debts ; and that the interest of the defendant in any surplus be charged with the payment of any liens or charges thereon in favor of the plaintiffs, or either of them, and, particularly, that the amount of the mortgage held by the plaintiff Seaman be paid thereout, before any portion of the proceeds be paid to the defendant.
And that a receiver be appointed to take possession of said barge and other property and assets of said partnership, and dispose of the same, and apply the proceeds thereof under the direction of this court; and that the defendant may by the order of this court be restrained from intermeddling or interfering with any of said partnership property or effects, or interfering, disposing of, or in any manner incumbering the same or any part thereof until the further order of this court, and that the plaintiffs may have such other or further relief in the premises as shall be just and proper, together with the costs of this action.
(10.) In Cases of PARTITION.
For a partition of lands held in common by one tenant in
common against his cotenant.
Title of the Cause.
The plaintiff complains of the defendant and alleges the following facts, constituting his cause of action :
Proceedings for partition may be by petition under the Revised Statutes, or by summons and complaint under the Code. And the provisions of the Revised Statutes, relating to the partition of lands, &c., apply to actions under the Code, so far as the same can be so applied to the substance and subject matter of the action, without regard to form. (Code, $ 448, and see cases cited in note to that section in Voorhies’ Code.)
As to parties to an action for partition or sale of real estate, and in what cases an action may be brought, see Pleadings, 181, 182; 2 Barb. Ch. Pr., 284–290.
The Supreme Court may authorize proceedings for partition or sale to be instituted on behalf of an infant. (Laws of 1852, chap. 277.)
An action for partition cannot be maintained by a person, whatever his title, unless he is actually or constructively in possession of the That the plaintiff and defendant are seized in fee, as tenants in common, each of the undivided one-half, and in possession of the following described lands, tenements and hereditaments, situate in the town of Greenbush, &c., [describing them.]
That there are no general or specific liens or incumbrances thereon, to the knowledge or belief of the plaintiff, and that plaintiff and defendant own no other land in common.
That the defendant refuses to consent to the partition or sale of said premises; that the plaintiff is desirous that a partition or division should be made of the said several parcels of land between the plaintiff and defendant, or, in
premises sought to be divided, or part of them. (Stryker v. Lynch, 11 N. Y. Leg. Obs., 116.) But this does not mean that he must be the actual occupant, or that he should hold an immediate present estate ; and an existing admitted life estate, although covering the whole premises, does not prevent the remainderman from being deered in possession, and he may maintain an action for partition, (Blakely v. Calder, 13 How., 476; see, also, Hosford v. Sherwin, 5 Barb., 52.)
A different opinion, however, is expressed in other cases (Fleet v. Dorland, 11 How., 489), holding that a party having a reversionary interest, subject to a life estate, has no possession, actual or constructive, within the meaning of the statute, and cannot maintain an action for partition.
' It is not absolutely necessary to aver that the complainant is in possession of the premises, as that fact is presumed from the allegation that the parties are seized as tenants in common. (Jenkins r. Van Schaack, 3 Paige, 245.) - ? This is not requisite, as it is not 'necessary to make creditors, having a general or specific lien, parties. But the plaintiff may, at his election, make every creditor, having a specific lien on the undivided interest of any of the parties, a party defendant. (2 R. S., 318, $$ 8, 9 and 10.) In such case the lien should be set out in the complaint. The old Chancery rule, 174, which required the holders of specific liens and incumbrances to be stated, does not seem to be reenacted. (See Supreme Court Rules, 72, 73, 74.)
case the same cannot be partitioned without material injury to the parties, then that the same may be sold, and the proceeds thereof divided between the parties.
Wherefore the plaintiff demands judgment, that partition of the above described premises may be made according to the course and practice of the court and the statute, and by commissioners, to be appointed for that purpose. And in case it shall appear that a partition thereof cannot be made without material injury to the rights of the parties, then that the said premises may be adjudged to be sold under the direction of this court, and the proceeds of the sale, after paying the costs and charges of this action, be divided among the said parties equally for according to their rights and interest therein), or for such further, &c., [as in No. 1.]
For partition of real estate, by tenant in common claiming
under a sherif's deed on execution against one of the heirs, against the widow and other heirs of a deceased owner, dying intestate.
SUPREME COURT-COUNTY OF ALBANY.
George N. Sharp
agt. Susannah Bouton, Nathaniel Crosby and Ma
ria his wife, &c, [ mentioning the names of the widow, all the heirs and tenants in common. ]
The abovenamed plaintiff complains of the abovenamed defendants as follows, that is to say: