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Reed v. Reed.

to a final decree in partition as these provisions now do, which are contained in the Code (2 Rev. Stat. 3 ed. 340, 8 84; II. 336, 337 SS 60, 61).* Under the provisions of those statutes, only a joint tenant or tenant in common was authorized to maintain an action for the partitition of real estate (Id. 326, $1), and that by implication forbade the action to be brought by a tenant by the curtesy as completely, though not expressly, as section 1538 of the Code of Civil Procedure. There is no substantial difference in these statutes, and this decision accordingly is binding upon the parties to this action. And since

it was made it has been followed in Woodhull v. [5] Little, 102, N. Y. 165. And in principle it is likewise

confirmed by Abbott v. Curran (98 N. Y. 665). [0] The case of Scheu v. Lehning (4 N. Y. Civ. Pro. 385)

stands no way in conflict with this rule, for there it was not made to appear that final judgment confirming the sale had been rendered. In the absence of such confirmation, the court would not require the purchaser to take the title, who urged the existence of such an objec

tion. For the law entitles every purchaser of real [] estate under a judgment in partition to a title which

will be reasonably free from doubt or dispute. The summons and complaint were served upon the infant defendants, as that was required to be done by section 426, 427 of the Code of Civil Procedure, and, as they were each under the age of fourteen years, the guardian ad litem was legally appointed for them, the next day after the summons and complaint were served, by the court acting under the authority of section 471 of the Code. And the omission to require a bond from the guardian in favor of

each of the infants did not divest the court of the [8] jurisdiction it had acquired over them in this manner.

Even if a several bond should have been required in favor of each of the infants, the omission to direct it to be given, and permitting one bond for their joint as well

*2 R. 8. 318, $ 6.

Reed v. Reed.

197 as several benefit, was no more than an irregularity,

which cannot now be made the subject of objection or complaint by the purchaser (Croghan v. Livingston, 17 N. Y. 218). In that case, the court held that the omission to file the bond required was no more than an irregularity which was afterwards amendable by the court. And an offer has been made to correct any irregularity in the form of this bond by executing and filing a bond in favor of each one of the infants if that should be exacted by the purchaser. But he has not insisted upon that being done. He accordingly cannot be relieved from his purchase on account of this alleged defect, even if he should be held right in mak

ing the objection. [10] The objection that there may be creditors of the

estate having the right to apply for the sale of the property for the payment of their debts, has been answered by the affidavit of one of the defendants, stating that her mother, who was the preceding owner of the property, left sufficient personal property to pay all claims against her estate.

These are the substantial as well as formal objections urged in behalf of the purchaser in support of his application to be relieved from the purchase, and, as neither of them is legally well founded, it follows that both of the orders from which the appeals have been taken should be affirmed, with $10 costs, besides the disbursements.

VAN BRUNT, P. J., and BARTLETT, J., concurred.

Platt & Washburn Refining Company o. Hepworth.

PLATT & WASHBURN REFINING COMPANY v.

HEPWORTH ET AL.

SUPREME COURT, First DEPARTMENT, NEW YORK COUNTY,

SPECIAL TERM, NOVEMBER, 1887.

SS 500, 537, 1776.

Pleading- When answer frivolous— Motion for judgment on.

On a motion for judgment on a frivolous pleading, affidavits cannot be

used. The motion should be determined solely on an inspection of

the pleading. Where, in an action against four defendants, the complaint alleged that

they were copartners and set forth a sale and delivery of merchandise to them, an answer by three of the defendants denying a sale “to the above named defendants” does not put in issue any of the allegations of the complaint, and judgment should be ordered thereon on the

ground that it is frivolous. An allegation in a complaint that the plaintiff is a corporation is admitted

by failure to affirmatively deny it in the answer. (Decided November 15, 1887.)

Motion for judgment on answer as frivolous.

This action was brought to recover $93.88, the value of goods alleged to have been sold and delivered to the defendants. The complaint alleged that the defendants, of whom there were four, were copartners doing business under the firm name of S. S. Hepworth and Company ; that said goods were sold and delivered to the defendants as such firm. Three of the defendants appeared and served a joint answer, in which they did not deny the sale and delivery to the firm.

Other facts are stated in the opinion.

Grant o. Crittenton.

Charles S. Clark, for plaintiff and motion.

William B. Elson, for defendants, opposed.

BARRETT, J.--On such a motion as this, affidavits cannot be used. It is to be determined solely by an inspection of the pleadings. The answer is clearly frivolous. The plaintiff's corporate rights are admitted by the failure, under section 1776, to plead affirmatively. The sale and delivery of the goods by plaintiff to defendants is also admitted. The denial of a sale to the above named defendants” is no denial of the allegation of the complaint. “The above named defendants” the three who defend. That is settled by the way the answer opens“the above named defendants Robinson, Skeller and Colwell,” &c. Of course, when these defendants subsequently deny a sale to the above named defendants, they mean these three so above named defendants, and not the defendants named in the caption. The sale and delivery to the latter is thus undenied.

Motion granted, with costs.

are

GRANT, AS SHERIFF, ETC., AND ANOTHER v. CRITTEN

TON.

SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY,

SPECIAL TERM, NOVEMBER, 1887.

SS 677 et seq., 3268, 3270.

Security for costs— When foreign corporation required to give.

Where a foreign corporation prosecutes an action in aid of an attach

ment in its own name and in the name of the sheriff to whom the

Grant o. Crittenton,

attachment was issued, it may be required to give security for costs. Section 3270 of the Code of Civil Procedure,-providing that a non

resident plaintiff cannot be required to give such security, unless the defendant is entitled to require it of all the plaintiffs,—does not apply, where, as in such case, the sheriff is a mere nominal party, not liable

for costs, (Decided November 14, 1887.)

Motion by defendant that plaintiff be required to give $250 security for costs.

This action was brought by the Pioneer Press Company, a foreign corporation, in the name of itself and of Hugh J. Grant, sheriff of the city and county of New York, for its own benefit, and by its own attorney, in aid of an attachment issued to said sheriff at its instance. Before the commencement of the action, permission to bring it in this form was granted, pursuant to sections 677 and 678 of the Code of Civil Procedure, on application of said corporation.

Henderson & Treadwell, for defendant and motion.

G. H. Seixas, for plaintiffs, opposed.

BARRETT, J.--Section 3270 is not applicable to a case of this kind, where, under section 677, the sheriff is a mere nominal party, not liable for costs, and where the creditor alone brings and maintains the action, appearing by his own attorney and being alone liable for costs.

The motion must be granted.

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