Opinion
April 21, 1911.
Lincoln B. Haskin, for the appellant.
Henry L. Maxson, for the respondent.
This appeal is by one of the defendants from an order of the Special Term that permits a second supplemental complaint. The action was begun in 1909 for a partition of realty and to clear clouds upon title. The Special Term granted a motion that certain questions of fact be tried by jury. The plaintiff pleaded that her mother died intestate seized of the premises in fee simple. Of the three questions for the jury, the first was whether the said allegation was the fact, and the second was whether the mother was the lawful wife of the father of the plaintiff. The said father left issue him surviving by a first wife. On the trial before the jury, after the plaintiff had adduced her evidence, the defendant read in evidence a deed whereby the premises were vested in her father. Finally the validity of that deed was conceded, and the plaintiff agreed that the jury should answer the first question in the negative. The jury answered the second question in the affirmative. The third question, which related to the pendency of a prior action for the same relief, was by stipulation of the parties referred to the court, and at the time of this application was not determined. It further appears that at the jury trial the defendant appellant read in evidence a certificate of tax sale of the premises for unpaid taxes for 1897 to Edwards, a daughter of the plaintiff's father by his said prior marriage. The plaintiff by her supplemental complaint would plead that her said father died intestate seized of the premises, leaving him surviving both his widow, the plaintiff's mother, who died intestate, and also certain other specified persons as his only heirs at law, of whom one is the plaintiff, and would plead also certain facts to establish the invalidity of the said sale for taxes. The plaintiff deposes that she had never heard of the deed to her father until it was produced at the said trial, but that she had always supposed that there was an old deed of the premises to both her father and her mother, and that after the death of the former the premises vested in her mother as tenant by the entirety. And she also deposes that she was ignorant of the tax sale, that the certificate was not of record, that no lease was given under it and that she was ignorant that any taxes thereon that subjected the premises to sale had remained unpaid, as taxes subsequent to the alleged unpaid taxes had been paid thereon by Rosenbrock, her sister and one of the defendants. We think that the order may be affirmed under the authority of section 544 of the Code of Civil Procedure. (See Baylies Code Pl. Pr. 530.) The order was granted without terms, but as such favor should not be allowed at the expense of the defendant (Baylies, supra, 544; Sage v. Mosher, 17 How. Pr. 373) we think that terms should have been imposed.
The order should be modified by providing that it is conditional upon the payment of costs by the plaintiff subsequent to notice of trial, a trial fee and the disbursements of the trial, and as so modified it should be affirmed, without costs.
HIRSCHBERG, BURR, WOODWARD and RICH, JJ., concurred.
Order modified by providing that it is conditional upon the payment of costs by the plaintiff subsequent to notice of trial a trial fee, and the disbursements of the trial, and as so modified affirmed, without costs.