#### Charles T. Murphy, Respondent, *v.*Stuard Hirschman, Appellant, Impleaded with Henrietta Hirschman and Others, Defendants.

Second Department,

May 28, 1915.

Partition—condemnation of lands pending action — award not included in judgment of sale —practice.

Where pending an action for the partition of real property a portion of the lands is taken by eminent domain by the city of New York, the award becomes personal property and the judgment in partition should not contain a provision directing the referee to include the award in the sale which should cover real property only.

Appeal by the defendant, Stuard Hirschman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 31st day of March, 1915, denying his motion to resettle the judgment herein.

*A. S. Gilbert [Francis Gilbert*with him on the brief], for the appellant.

*Samuel Bitterman,*for the respondent.

*154Stapleton, J.:

The action is for the partition of real' property. When the action was commenced the plaintiff and the defendant Hirschman held the premises described in the complaint as tenants in common, each being vested with an undivided one-half interest. Pending the suit the fee in the property, for its entire frontage and for fifteen feet of its depth, vested in the city of New York. The parcel taken was acquired *in invitum*for street purposes. The money awarded was less in amount than the sum secured by mortgages which were liens upon the entire plot described in the complaint. An appeal was taken from the order confirming the report of the commissioners of estimate appointed in the condemnation proceeding. That appeal remains undetermined. These facts existed when the plaintiff moved for an interlocutory judgment in the action for partition. The judgment entered directed the sale of the property described in the complaint, excepting the parcel acquired by the city. It contained a provision directing the referee to include the award in the sale. The judgment was entered without notice to the defendant Hirschman, notwithstanding his appearance in the action and his demand of service of notice of proceedings. Hirschman then moved to resettle the interlocutory judgment. His purpose was to have the direction for the sale of the award eliminated. The motion was denied. It is from the order denying the motion that this appeal is taken.

It is our opinion that the order should be reversed. The sale authorized by law is the sale of real property. (Code Civ. Proc. §§ 1532-1546; *Underwood*v. *Curtis,*127 N. Y. 523, 543; *Sandiford*v. *Town of Hempstead,*97 App. Div. 163,172.) The award is personal property, into which the real property taken has been converted by operation of law. It represents the aggregate value of all the estates and interests in the real property acquired, and any person interested may obtain a judicial allotment of his proportionate share and recover the amount thereof. (Greater N. Y. Charter [Laws of 1901, chap. 466], chap. 17, tit. 4, as amd.; *Matter of Eleventh Avenue,*81 N. Y. 436, 443, 453; *Matter of City of Rochester,*136 id. 83; *Gates*v. *De La Mare,*142 id. 307, 312; *Youngs*v. *Stoddard,*27 App. Div. *155162; *Hill*v. *Wine,*35 id. 520; *Farmers L. & T. Co.*v. *Westchester County W. W. Co.,*143 id. 78; affd., 206 N. Y. 711.)

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Jenes, P. J., Mills and Putnam, JJ:, concurred; Carr, J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled before Mr. Justice Stapleton.