Dinan v. Coneys , 67 Hun 141 ( 1893 )

BARNARD, P. J.

Daniel R. Dinan devised a parcel of real estate, situate in Rockland county, to his son, the plaintiff. He gave the sum of $300 to the defendant Hannah Coneys, and made the same a charge on the land. The defendants have occupied the land since the testator’s death, in 1883. The plaintiff seeks to recover possession of the land. The defendant William Coneys avers that he has a claim for repairs made at plaintiff’s request. The defendant Hannah Coneys sets up the bequest, and its charge upon the lands, and asks judgment for its recovery of the plaintiff. The claim for repairs was rejected on the trial. No proof was given to show the payment of the $300, or of any part of it. The referee gave judgment for the recovery of the land by the plaintiff, and for a judgment for the bequest, with interest, in favor of Hannah Coneys, against the plaintiff. By section 501 of the Code, a defendant may set up a cause of action connected with the subject of the action. The subject of the action is the real estate in question. One party seeks possession, and the other seeks to recover the amount of a lien she has on the property, created by the instrument which gave the title to the plaintiff. Manufacturing Co. v. Hall, 61 N. Y. 226. The judgment did not go far enough. There should have been appointed a referee to sell the land, and out of the proceeds to pay the legacy, and, after payment of the same, to pay over the balance to the plaintiff'. The judgment should be modified in this respect, and as modified affirmed, with costs.

PRATT, J., concurs.