#### Anna M. C. Dougherty, Resp’t, *v.*The Remington Paper Company, Appl’t.

*(Supreme Court, General Term, Fourth Department,*

*Filed November,*1886.)

1. ÜOWEE — ADMEASUREMENT OF — PRACTICE — REFERENCE.

On an application for the admeasurement of dower after a decision of the referee as to the rights of the parties under the issues (there being no issue joined as to the practibility of an actual admeasurement) before a judgment declaring them can be entered, a reference is requisite to ascertain whether actual admeasurement or partition can be made.

2. Same — When a sale will be had — Code Civ. Peo., § 1619.

Under Code Civ. Pro. § 1619, it is not sufficient that one of the parties should be injured by an actual partition. The rights of all parties are to be looked after and protected, and if a division of the land cannot be made without injury to the interests of all the parties, a sale may be had.

Appeal from Referee’s decision.

*O'Brien Emerson*for resp’t; *JDorwine Brown*for appl’t.

Boardman, J.

This action was brought to recover dower in certain real estate claimed to be owned by, and in the possession of, the defendant. Defenses were interposed, and a reference had to hear, try, and determine the same. In the pleadings there is no issue joined as to the practicability of an actual ad-measurement of a specific portion of the land to plaintiff, for her dower. The only allusion thereto is in the alternative relief demanded in plaintiff’s prayer for judgment.

We therefore conclude it was not a matter to be tried under .the order of reference, and that the evidence offered and ad-raitted should have been rejected. Such error, however, need not involve an entire new trial. The introductory judgment must be reversed and the 4th finding of law be stricken from *137tbe report as unauthorized and unwarranted. The defendant’s exception to this 3d conclusion of law, must be sustained.

It follows as a consequence of this decision, that the court has not been legally shown, “ that a distinct parcel cannot be ad-measured and laid off,” as is required by § 1619 of Code, before it may by judgment direct the property to be sold at public sale.

Undoubtedly, in case of a trial by the court, the question of actual admeasurement of dower could be investigated and decided so that the rights of the parties and the necessity of a sale and the interlocutory judgment could all be determined in a single hearing. The course we apprehend could not often be practicable, since feasibility of an actual partition could not generally be denied without a visible examination of the lands by court, referee or commissioners. Indeed, the possibility of an actual partition might often greatly depend upon the rights of the several parties as decided by the referee on trial, and until such rights were so determined, the question could not be intelligently considered. We think, therefore, that the practice requires in all cases (except, pérhaps, where the trial is by the court, which finally orders the interlocutory judgment) a reference to ascertain whether actual admeasurement or partition can be made, after a decision of the referee as to the rights of the parties under the issue and before the judgment declaring such rights.

The 6th finding of fact, does not conform to the requirements of § 1619, in that it does not find and decide “whether a distinct parcel of the property can be admeasured and laid off, to the plaintiff, as tenant in dower, without material injury to the interests *of the parties”*It is not sufficient that one of the parties would be injured by an actual partition. The rights of all parties are to be looked after and protected, and if a division of the land cannot be made without material injury to the interests of all the parties, a sale may be had. Here there is an especial reason why a sale should not be ordered if it can reasonably and fairly be avoided. The plaintiff has a very slight interest in a property of very considerable value given to it by improvements made by defendant in which plaintiff has no dowable interest. The defendant has considerable claims by way of judgment against the plaintiff, which should be paid out of plaintiff’s interest in these lands or otherwise. The plaintiff is insolvent. A sale might result in a serious injury to a manufacturing industry, and to defendant’s stockholders without corresponding advantage to plaintiff. The defendant, therefore, has a right to demand that its interests, as well as plaintiff’s, should be considered before a sale is ordered of the lands in question.

We conclude tnat the interlocutory judgment should be re*138versed, and that the Special Term proceed to appoint a referee or commissioner to ascertain whether plaintiff’s dower can be admeasured by actual partition. The defendant should have costs of this appeal to be paid by plaintiff.

For the same reason it follows that the order denying defendant’s motion for the appointment of a referee'or commissioner to admeasure plaintiff’s dower or to ascertain whether it could be admeasured should be reversed, and said motion granted and the court at Special Term will appoint such referee or commissioner under these decisions upon due and proper notice. No costs are allowed upon the appeal from the order.

Hardin and Follett, JJ., concur.