German-American Bank of Rochester v. Stein 79 N.Y.S. 1132

NASH, J.

As suggested in consultation, I am of the opinion that it is equitable .that there should be an attempt -at actual partition, based upon the offer' of the appellants" to have their share set off in common from the east end of the premises, upon the assumption that the Niagara Boulevard is a legal highway. There is little doubt that the adjoining proprietors regard it for their interest, and that they will make the street now open permanent. The price at which the lands are held precludes the idea of treating them as farming lands, or that they will ever become such. I therefore report the following modification of the judgment: Interlocutory judgment modified so that it shall provide for an actual partition of. the lands by commissioners appointed for that purpose, provided the appellants file their stipulation, in writing, to the effect that the commissioners may, for the purposes of such partition, estimate and determine the relative .value per acre of all of the lands, excluding the lands comprising the street known as the “Niagara Boulevard,’’ based upon the assumption that the Niagara Boulevard is a legal highway, dedicated as such, so far as the ¡parties hereto are concerned, and that, in making partition between the parties, the commissioners may set off to the appellants, and the appellants will accept, their share of the lands, to be taken from the east end of the premises fronting on the Niagara Boulevard, based on such valuation; that the remainder of the lands be set off to the respondents, to be enjoyed by them in common, or partitioned or sold, as they may elect; that, if such stipulation is not filed as herein provided within 10 days after the entry of, the order of modification, the interlocutory judgment be affirmed, with costs. The filing of such stipulation shall not be regarded as precluding the commissioners from an actual partition of the premises, including the lands comprising the Niagara Boulevard, without regard to such stipulation, if it is found that such partition can be made without great prejudice to the owners, or if the setting apart of the share of the appellants in disregard of the stipulation is the more beneficial to the interests of the tenants in common. Interlocutory judgment modified accordingly. Gosts of this appeal to abide the final award of costs. All concur, except WILLIAMS, J„ who dissents, and votes for affirmance.