proper county clerk's office, of a notice of the pendency of the action, as prescribed in article ninth of this title. 3. Each person, not in being when the interlocutory judgment is rendered, who, by the happening of any contingency, becomes afterwards entitled to a beneficial interest attaching to, or an estate or interest in, a portion of the property, the person first entitled to which, or other virtual representative whereof, was a party specified in the first subdivision of this section. But this section does not apply to a party, whose right and interest are expressly reserved and left unaffected, as prescribed in section 1539 of this act, or to a person claiming from, through, or under such a party. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 35. Reference.- Form and effect of final judgment, Code Civ. Proc., § 1577. In general.- Satterlee v. Kobbe, 39 App. Div. 420, 423, 57 N. Y. Supp. 341; Prior v. Prior, 49 Hun 502, 2 N. Y. Supp. 523; Post v. Post, 65 Barb. 192. Effect of judgment.- Jordan V. Van Epps, 85 N. Y. 427; Greenleaf v. Brooklyn, F., etc., R. Co., 141 N. Y. 395. Parties concluded.- Brooks V. Davey, 109 N. Y. 495; Fox v. Fer, 24 App. Div. 314. 49.N. Y. Supp. 292. Errors and irregularities. Woodhull v. Little, 102 N. Y. 165. - Appeal. Tilton v. Vail, 117 N. Y. 520. § 1558. Judgment must direct delivery of possession. The final judgment must also direct that each of the parties, who is entitled to possession of a distinct parcel allotted to him, be let into the possession thereof, either immediately, or after the determination of the particular estate, as the case requires. Derivation.- New. § 1559. Costs; how awarded. Id.; against unknown parties. The final judgment for the partition of the property, must also award, that each defendant pay to the plaintiff his proportion of the plaintiff's costs, including the extra allowance. The sum to be paid by each must be fixed by the court, according to the respective rights of the parties, and specified in the judgment. If a defendant is unknown, his proportion of the costs must be fixed and specified in like manner. An execution against an unknown defendant may be issued to collect the costs awarded against him, as if he was named in the judgment; and his right, share, or interest in the property may be sold by virtue thereof, as if he was named in the execution. Derivation.-R. S., pt. 3, ch. 5, tit. 3. § 72. References.- Costs in partition, how paid, Code Civ. Proc., § 1579; costs generally, Id., § 3251; additional allowance in partition action, Id., §§ 3252, 3253. Costs. Wood v. Hubbard. 29 App. Div. 166, 170, 51 N. Y. Supp. 526; Salls v. Salls, 19 N. Y. Supp. 246; Amount.- Clapp v. Hunter, 52 App. Upon actual partition.- Crossman v. Wyckoff. 64 App. Div. 554, 72 N. Y. Supp. 337; Sprague v. Englebrecht. 29 Misc. 464, 61 N. Y. Supp. 952; Weed v. Paine, 31 Hun 10. § 1560. Sale of property; when directed. If the commissioners, or a majority of them, report that the property, or a particular lot, tract, or other portion thereof, is so circumstanced, that a partition thereof cannot be made, without great prejudice to the owners thereof, the court, if it is satisfied that the report is just and correct, may thereupon, except as otherwise expressly prescribed in this article, modify the interlocutory judgment, or render a supplemental interlocutory judgment, reciting the facts, and directing that the property, or the distinct parcel thereof so circumstanced, be sold by a referee. designated in the judgment, or by the sheriff. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 37 and 81. When sale directed. Stephenson v. Colter, 5 N. Y. Supp. 749, 23 St. Rep. 74; David v. David, 9 N. Y. Supp. 256, 31 St. Rep. 116; Coster v. Coster, 21 N. Y. Supp. 203; Van Arsdale v. Drake, 2 Barb. 599; Post v. Post, 65 Barb. 192; Smith v. Smith, 10 Paige 470. Modification of judgment.- Smith v. Trustees of Brookhaven, 36 App. Div. 386, 55 N. Y. Supp. 370. § 1561. Reference to inquire as to creditors. Before an interlocutory judgment for the sale of real property is rendered, in an action for partition, the court must, either with or without application by a party, direct a reference, to ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party. But the court may direct or dispense with such a reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated; and it appears therefrom, and by the affidavits, if any, produced therewith, that there is no such outstanding lien. Where a reference is directed, as prescribed in the last section, the referee must cause a notice to be published, once in each week for six successive weeks, in such newspaper published in the county wherein the place of trial is designated, as shall be designated by the court directing said reference, and also in a newspaper published in each county wherein the property is situated, requiring each person, not a party to the action, who, at the date of the order, had a lien upon any undivided share or interest in the property, to appear before the referee, at a specified place, and on or before a specified day, to prove his lien, and the true amount due or to become due to him by reason thereof. The referee must report to the court, with all convenient speed, the name of each creditor, whose lien is satisfactorily proved before him, the nature and extent of the lien, the date thereof, and the amount due or to become due thereupon. (Am. by L. 1887, ch. 686.) Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 43. Publication. O'Grady v. O'Grady, 55 Hun 40, 8 N. Y. Supp. 278; Dore mus v. Doremus, 66 Hun 111, 21 N. Y. Supp. 14; Connor v. Connor, 13 N. Y. Supp. 402, 20 Civ. Proc. Rep. 308. § 1563. Money to be paid into court. If it appears by the pleadings, or by the evidence in the action, or by the report, that there was, at the date of the order, any existing lien upon the share or interest of a party in the property, the interlocutory judgment, directing the sale, must also direct the officer making it to pay into court the portion of the money, arising from the sale of the share or interest of that party, after deducting the portion of the costs and expenses for which it is liable. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 44. Lien of judgments.- Kelly v. Wer § 1564. Application for money. ner, 34 App. Div. 68, 53 N. Y. Supp. 1067; Treacy v. Ellis, 45 App. Div. 492, 61 N. Y. Supp. 600. Where money is paid into court, in a case specified in the last section, the party may apply to the court for an order directing that the money, or such part thereof as he claims, be paid to him. Upon such an application, he must produce the following papers: 1. An affidavit, made by himself, or, if a sufficient excuse is shown, by his agent or attorney, stating the true amount actually due on each incumbrance, and the name and residence of the owner of the incumbrance, as far as they are known, or can be ascertained with due diligence. 2. An affidavit, showing service of a notice of the application upon each owner of an incumbrance. Service of the notice, within the State,` must be personal, or by leaving it at the owner's residence, with some person of suitable age and discretion, at least fourteen days previous to the application. Service, without the State, if personal, must be made at least twenty days previous to the application. If the owner of the incumbrance resides without the State, and the place of his abode cannot be ascertained, with reasonable diligence, notice may be served upon him by publishing it in the newspaper printed at Albany, in which legal notices are required to be published, once in each week for the four weeks immediately preceding the application. Upon the application, the court must make such an order as justice requires. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 45, and first clause of § 46. References.- Payment of money into court generally, and the care and § 1565. Payment of incumbrances. disposition thereof. see Code Civ. Proc., §§ 743-754; Rules 68, 69, General Rules of Practice. When the whole amount of the unsatisfied liens upon an undivided share, which were existing at the date of the order of reference, has been ascertained, the court must order the portion of the money so paid into court, on account of that share, to be distributed among the creditors having the liens, according to the priority of each of them. Where the incumbrancer is not a party to the action, the clerk or other officer, by whom a lien is paid off, must procure satisfaction thereof to be acknowledged or proved, as required by law, and must cause the incumbrance to be duly satisfied or cancelled of record. The expense of so doing must be paid out of the portion of the money in court, belonging to the party, by whom the incumbrance was payable. Derivation.-R. S., pt. 3, ch. 5, tit. 3. §§ 47, 48. Rights of purchaser at execution § 1566. Other parties not to be sale. Hulbert v. Hulbert, 86 Misc. 662, 149 N. Y. Supp. 568. delayed. The proceedings to ascertain and settle the liens upon an undivided share, as prescribed in the last three sections, shall not affect any other party to the action, or delay the paying over or investing of money, to or for the benefit of any other party, upon whose share or interest in the property there does not appear to be any existing lien. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 49. § 1567. Sale of dower interest. Where a party has an existing right of dower in the entire property directed to be sold, at the time when an interlocutory judgment for a sale is rendered in an action for partition, the court must consider and determine whether the interests of all the parties require, that the right of dower should be excepted from the sale, or that it should be sold. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 50. § 1568. Purchaser to hold the property free therefrom. If a sale of the property, including the right of dower, is directed, the interest of the party entitled to the right of dower shall pass thereby; and the purchaser, his heirs and assigns, shall hold the property free and discharged from any claim, by virtue of that right. In that case, the dowress is entitled to receive, from the proceeds of the sale of the whole property, a gross sum, in satisfaction of her right of dower, or to have one-third of those proceeds paid into court, for the purpose of being invested for her benefit, as prescribed in the next section with respect to the dowress of an undivided share. Derivation.-R. S., pt. 3, ch. 5, tit. 3, § 51. § 1569. Gross sum to be paid to or invested for tenant in dower, etc. A party to an action for partition, who has a right of dower, or is a tenant for life or for years, in or of an undivided share of the property sold, is entitled to receive, from the proceeds of the sale, a gross sum, to be fixed according to the principles of law applicable to annuities, in satisfaction of his or her estate or interest. The written consent of the party to receive such a gross sum, acknowledged or proved, and certified, in like manner as a deed to be recorded, must be filed, at the time of, or before, the filing of the report of sale; otherwise the court must direct that, out of the proceeds of the sale, which belong to the undivided share to which the estate or interest attaches, onethird, in case of a dowress, and in any other case arising under this section, the entire proceeds, or such a proportion thereof as fairly represents the interest of the holder of the particular estate, be paid into court, for the purpose of being invested for his or her benefit. If it shall appear to the court that the tenant for life or for years, or the widow, is an infant, lunatic or otherwise incompetent, and that a general guardian or committee has been duly appointed, upon proof that it will be for the best interest and advantage of the estate of such infant or lunatic or incompetent person, the court may authorize and direct such guardian or committee, in the name of such infant, lunatic or incompetent person, having such estate for life, or years or dower right, to execute an instrument under seal, acknowledged or proved and certified in like manner as a deed to be recorded, whereby such guardian or committee shall consent to accept in lieu of such estate or dower, a sum, to be ascertained by the court as above provided, according to the principles applicable to life annuities; and upon presentation of such an instrument to the court, the value of the estate for life or for years or dower so ascertained by it shall be paid to such guardian or committee. Such instrument shall have the same force and effect as a deed or instrument executed and acknowledged by a competent person or a person of full age. (Am. by L. 1913, ch. 450.) Derivation.- R. S., pt. 3, ch. 5, tit. 3, §§ 52-54. Reference.- Gross sum in payment of life estate, how determined, Rule 70, General Rules of Practice. Consent. Ryder v. Kennedy, 224 N. Y. 407; Wood v. Powell, 3 App. Div. 318, 38 N. Y. Supp. 196; Valentine v. Hutchinson, 43 Misc. 314, 88 N. Y. Supp. 862. Admeasurement of dower.- Ryder v. Kennedy, 166 App. Div. 146, 151 N. Y. Supp. 1036. § 1570. Interests of owners of future estates to be protected. Where it appears, that a party to the action has an inchoate right of dower, or any other future right or estate, vested or contingent, or that any person or persons not in being who may by any contingency |