New York County NyArchives Court.....Vail, Francis Vs. Elizabeth Vail 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

FRANCIS VAIL, Appellant, v. ELIZABETH A. VAIL, in Her Own Right and as Executrix 
of and Trustee Under the Last Will and Testament of AARON F. VAIL, Deceased, 
NETTIE VAIL, ROBERT VAIL and OPHELIA VAIL, Respondents.

Partition — power of the commissioners to direct a partial destruction of 
buildings.

Commissioners, appointed in an action brought for the partition of real 
property, do not possess the power, with a view to effecting an equal division 
of the property, to direct a partial destruction of the buildings thereon.

Appeal by the plaintiff from a final judgment in partition confirming the report 
of commissioners directing an actual division of the lands in suit, which 
judgment was entered in the office of the clerk of the county of New York on the 
2d day of July, 1888.

J. Hampden Dougherty, for the appellant.

Charles W. Dayton, for the respondents.

Bartlett, J.:

This is an action for the partition of premises situated partly on Grand street, 
partly on Orchard street and partly on Ludlow street, in the city of New York. 
It is undisputed that the rights and interests of the respective parties have 
been correctly ascertained; and it is also conceded that the premises are 
capable of being actually partitioned. This appeal is from the final judgment 
confirming the report of the commissioners who were appointed to make the 
partition, except so much of the said judgment as awards the plaintiff costs. 
Practically, it presents but a single question for our consideration; and that 
is, whether, to effect an equal division, commissioners in partition possess the 
power to direct the partial destruction of one of the buildings on the property 
which is the subject of the suit. Both parties seem to have agreed that for the 
purposes of partition it was proper to divide the premises into two parcels, one 
comprising the three dwellings fronting on Grand street, the other including all 
the rest of the property, that is to say, the lot on the corner of Grand street 
and Orchard street, the lot on Orchard street and the lot on Ludlow street. The 
commissioners thought, however, and say, in the memorandum accompanying their 
report, that justice could not be done to the party to whom the three Grand 
streets lots might be awarded, "unless the depth of these lots were increased by 
adding for light and air" a rectangle seven feet wide along the rear of those 
lots. A portion of this rectangle is vacant; but upon a part of it stands a 
tenement — which is one of two rear houses located on the Orchard street lot — 
and this tenement must be demolished to the extent of removing a portion 
thereof, seven feet wide and twenty-nine feet deep, in order to carry out the 
intention of the commissioners to add the seven-foot rectangle to the Grand 
street parcel for the purpose of affording light and air to the same. The 
expense of taking down seven feet of the tenement was estimated by the 
commissioners at $1,200, and this was imposed upon the party who should receive 
the Grand street lots. The Grand street lots were awarded to the plaintiff, but 
he is dissatisfied and appeals because the action of the commissioners has 
conferred no benefit upon him in giving him a strip of unoccupied land; and yet 
he is charged with a considerable sum of money on account of having this strip 
set off to him.

That the commissioners contemplated the destruction of the rear Orchard street 
tenement, so far as it occupies the seven feet strip, is plain. I have already 
quoted from their memorandum, in which they speak of the necessity of increasing 
the depth of the Grand street lots by adding this rectangle "for light and air." 
In the same memorandum they say that "the uncontroverted testimony established 
the fact that, for $1,200, seven feet of the building can be taken down, a new 
wall erected," and suitable alterations effected. In their report itself they 
say it will be necessary to partly take down and otherwise make alterations in 
the rear buildings on the Orchard street lot; and in an affidavit by two of the 
commissioners, relating chiefly to the question of their fees, they declare that 
the portion of the Orchard street building, seven feet wide, which stands upon 
the rectangle or slip, would not only be valueless, but would really be an 
incumbrance on the Grand street allotment. In view of these various statements, 
it is idle to urge that the commissioners contemplated nothing more than the 
erection of a division wall in the Orchard street rear building which should cut 
off seven feet thereof from the defendants' allotment. What they meant and 
intended, beyond any reasonable doubt, was that the part of this building which 
stands on the seven-foot strip should be wholly demolished and removed. 
Otherwise, what they say about the necessity of allotting this strip to the 
Grand street parcel "for light and air," and their estimate as to the cost of 
removing that portion of the building, would be meaningless. 

The learned judge at Special Term, however, seems to have treated the action of 
the commissioners simply as directing the division of one building in to two. In 
Walter v. Walter (3 Abb. N. C., 12, 18), Davis, J., intimated that it might be 
proper for commissioners to make such a division; but, as has been said, the 
plain intention here was not to divide the rear tenement, but to destroy seven 
feet of it.

The cases cited by the respondents and by the court below do not, any of them, 
sustain the proposition that commissioners in partition can prescribe the 
destruction of any portion of the property in order to effect an equal division 
thereof. Of these cases, the principal one is Wood v. Little (35 Maine, 107). In 
this case the property to be partitioned included a cotton factory. The agreed 
statement of facts declared that the factory could not be divided into the 
several parts prayed for in the partition without destroying the property for 
the purposes for which it had been maintained by the owners. But it further 
declared that the factory could be divided, as prayed for, without destroying 
the same for purposes and uses other than those for which it was erected and had 
previously been maintained. A partition was ordered upon the express conclusion 
of the court that it was possible to make the desired division "without 
destruction of the property or seriously impairing its value," thus clearly 
implying that if an actual partition would have destroyed the factory, or even 
seriously impaired its value, such a division would not have been sanctioned. 
All that this case holds, therefore, is that the mere fact that a building 
cannot be employed for the same purposes to which it has heretofore been devoted 
is not a valid objection to a partition thereof, provided the partition will not 
destroy its value for other purposes. The case of Walter v. Walter (supra), 
involved a question not of destruction but of division. This case was decided at 
chambers by the former presiding justice of this General Term, and there is 
language in the opinion which implies, doubtless correctly, that commissioners 
in partition possess the power to direct the division of one city store into two 
stores, and hence to order the construction of a division wall. And it has been 
held in England that such commissioners may direct new hedges and fences to be 
made. {Lister v. Lister, 3 Young & Coll., 540, 546.)

The other decisions referred to below relate to the disinclination of courts to 
disturb the findings of commissioners on questions of value, but no cases need 
be cited to show that an error of law in the procedure of commissioners in 
partition can be and should be reviewed, and if detrimental to a party, should 
cause the report to foe set aside or modified so that justice may be done.

Neither the Code nor any case which I have been able to find sanctions the 
exercise of any such power as the commissioners have endeavored to exercise in 
this case. It was in excess of their authority and demands a reversal of the 
judgment, so far as the judgment confirms their report. (Code Civil Pro., § 
1556.) No occasion appears to exist, however, for the appointment of new 
commissioners. The gentlemen who have already acted are familiar with the 
premises, and the estate will probably be saved expense by referring the matter 
back to them, with directions to make partition in such a way as not practically 
to destroy any portion of the buildings to be partitioned.

In the opinion below, as well as in the brief for respondents, the question of 
the commissioners' fees is discussed, but as the appellant makes no point on 
that subject, it has not been considered by the General Term.

Van Brunt, P. J., and Daniels, J., concurred.

Judgment reversed and question of partition sent back to commissioners.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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