#### Mary Goodwin, Plaintiff, v. John J. Crooks et al., Defendants.

(Supreme Court, New York Special Term,

November, 1900.)

1. Partition — Purchaser, seeking to be relieved, must show affirmatively a defect of parties.

Where a portion of a deposition introduced in an action of partition sufficiently shows the death without issue of a person, who, or whose heirs, would otherwise have been necessary parties, the burden is upon purchasers at the sale, who seek to be relieved of their purchase, to show affirmatively that the whole deposition contained contrary evidence, as the court will not so presume.

2. Same — Variance in referee’s notice of sale.

The fact, that the referee’s notice of sale was not in the terms of the interlocutory judgment and only announced a sale of “ all the right; title and interest” of certain persons named, cannot have prejudiced the purchasers, whatever effect it may have had in reducing the amount of the bids.

*40Motion by purchasers upon sale under interlocutory judgment^ in an action for partition, to be relieved from their purchase.

Herbert S. Ogden, for motion.

Lucius A. Waldo, opposed.

Bischoff, J.

The marketability of the title is questioned, not by reason of matters connected with the source or the chain of title, but because of asserted defects in the proceedings in this action.

Examining the points raised, I conclude that the objections made-by the purchasers are not tenable, and that the motion should be denied for the reasons following:

(1.) The fact of the death, without issue, of John Grady was-sufficiently proven by the testimony of Rebecca Gallagher, taken upon a commission, produced from the files of the county clerk’s office, and read in evidence. The sufficiency of this very testimony was passed upon by the Court of Appeals (Gallagher v. Crooks, 132 N. Y. 338), and the purchasers’ suggestion that the testimony might be found to have been weakened if the whole of the record of the deposition were in evidence, cannot be adopted for the purposes of this motion. *Prima facie*the fact was established, and since the record in question was and is open to examination by the-purchasers, their motion, on this head, should be founded upon the fact that the deposition did, indeed, contain contrary evidence, the burden being upon them to show the probability that the title is-invalid through the omission of a party whose non-existence is-otherwise sufficiently to be inferred. Lenehan v. College of St. Francis Xavier, 51 App. Div. 535.

(2.) The authority last cited has application also to the objection touching the proof of the death of Frederick Acldand, without brothers and sisters. The testimony given at the hearing before the referee upon this point may have been open to objection as a conclusion, and to a double construction, but it appears from the affidavits of the same witnesses, furnished at the request of the purchasers, and now filed, that the fact found by the referee is-not reasonably open to dispute, in the absence of any proof tending tó the contrary.

(3.) As to the provision of the judgment whereby the legacy of $1,000, payable to John S. Hannigan, deceased, is directed to *41be paid into court, the objection that the fund does not cover interest seems without force. All persons apparently interested as distributees of his estate are parties, and are bound by the directions of the judgment.

Furthermore, the extent of the lien arising from this legacy was determined by the judgment, and it is not readily conceivable that the fact is open to question in the future by possible creditors of this deceased party in interest, since the claims of such creditors were not liens upon this real estate, and their rights were properly to be represented by an administrator whose appointment they could have procured. Upon the present record, I do not understand that the question of the extent of the lien of this legatee,, as found by the judgment, is a matter which has any effect upon the title offered.

(4.) The same considerations apply to the distribution of the amount of the legacy of the deceased legatee, Bernard Hannigan, except that, in this instance, substantial administration, as to creditors, was had through the offices of a committee. The purchasers do not claim that this fund should be paid into court, under special provisions of the statute, the contention being merely that the parties in interest should have procured the appointment of an administrator to receive the fund. No such requirement is found in the statute, nor would the step seem to be necessary for the protection of the purchasers, in any aspect.

(5.) The title being in other respects valid, I do not think that the proceedings are rendered infirm, because the referee’s notice of sale was so framed as to cover a sale of *“*all the right, title and interest ” of the parties named. The purchasers, by the referee’s deed, will receive a complete title to the property itself, according to the directions of the interlocutory judgment, and, while it might have been claimed by the parties interested in the proceeds of sale that the form of the notice might have lessened the available bids, that question is settled, as to them, by the confirmation of the report of sale. Certainly the purchasers did not bid more under this notice than they would have offered had the notice been in' the exact words of the interlocutory judgment, and no such claim is made.

Motion denied, with ten dollars costs.