This is an action for the partition of three parcels of land, each being two lots in width and having upon it two apartment buildings. The plaintiff alleges that he and the appellant are seized and possessed of the premises as tenants in common, each owning a one-half interest therein subject to the contingent right of dower of their respective wives, who are the other defendants, and have not answered. It is alleged in the complaint, and admitted by appellant’s answer, that the premises cannot be partitioned without great prejudice to the owners and that all the parties are of full age and own no other lands in common.
The plaintiff demands judgment establishing the title and interest *206of the respective parties; that the premises be sold.; that, after paying the costs and expenses, the value of the contingent rights of dower, adjusting the amount coming to plaintiff, on account of rents and profits, it being alleged that for a long period of time appellant has collected and retained the same, the balance be divided equally between them. .
The appellant also expressly admits that they are seized and posT sessed of the premises, but he denies that their wives have any contingent interest therein and also denies that he has collected and retained any of the rents and profits. He alleges that they purchased the premises as copartners; that they have become indebted in the course of their partnership business to various persons in amounts aggregating more than $75,000; that the partnership is also indebted to the individual members thereof in various amounts for money loaned and advanced ; that there has been no accounting or settlement of the copartnership affairs either as to creditors or between themselves; that these matters are still open and unsettled, and judgment is demanded dismissing the complaint. By not denying the allegation of ownership as tenants in common appellant has doubtless admitted it. (Fleischmann v. Stern, 90 N. Y. 110.)
The issues were tried at Special Term on the- 22d and 23d days of October, 1900. A decision of the court, without findings of fact or conclusions of law, dated March 21, 1901, was made and filed by the justice presiding, in which it was held and decided that the action was “ maintainable ” and that the plaintiff was “ entitled to the usual preliminary order of reference .as to title, including a provision for an account,” and the grounds of the decision .are therein stated to be that plaintiff and appellant intended to and did acquire and still hold the property as tenants in common and not as partners, and that “ there are no debts of any partnership between the plaintiff and the defendant Gustavus A. Goldsmith, and no debts relating to any of the property sought to be partitioned herein, except mortgages upon the said real estate; that all of the parties interested are before the court, and a statement of account in relation- to the expenses and profits or rentals of said property would cover the whole matter in controversy between the parties.” This is the substance of' all the material parts of the decision.
*207The learned trial justice received evidence upon all the issues, and in his opinion states that the parties were copartners in the management of the property, including maintenance, repairs and other expenses and in the income; but he failed to so state in the decision. The decision does not definitely determine all the issues or the rights, shares or interests of the several parties, or award or deny costs, or decree whether a partition or sale shall be had, or diréct an interlocutory judgment as required by the provisions of the Code (Code Civ. Proc. §§ 1022, 1543, 1546.) The appellant duly filed exceptions to the decision upon these and other grounds.
On the 22d day of March, 1901, upon this decision alone an order of reference was made at the same Special Term, presided over by the justice who tried the issues appointing a referee to take proof, among other things, of the title and interest of the respective parties, what share or part thereof belongs to each, whether the property or any part thereof is so circumstanced that it cannot be partitioned, to take and state the account of the parties with respect to receipts from and disbursements necessarily incurred in the management and leasing, of the premises, showing the amount due from each to the other and to report “on any and all personal property and assets in connection with the subject-matter of this action, to wit, the property described in the complaint, together with his opinion as to a division thereof among the parties herein.”
It is stated that appellant appealed from this order and that his appeal was dismissed; but this is not shown by the record. It appears, however, that his right to appeal from the order and to object to the regularity and validity thereof and. of the proceeding before the referee was attempted to be preserved, as far as possible, by a special appearance, by stipulations and by 'objections taken to the proceedings and to the evidence.
The referee made his report on the 18th day of May, 1901, setting forth the liens and leases and finding that the interests of the parties were as alleged in the complaint; that partition was impracticable and that the sale should be by parcels; that there was a surplus fund of $2,796.16 income from said premises, part of which was deposited in a bank and the balance in the hands of an agent of the parties ; that there was owing for accrued, uncollected rents the sum of $440; that there was also personal property consisting of *208carpets, mirrors, chandeliers and gas fixtures worth $880, a number of window shades and a quantity of coal, in- all of which each of the parties was entitled to a one-half interest, and he- recommended that this personal property, other than the coal, be sold at public auction and the proceeds divided equally between them.
The appellant also'filed specific objections to all material parts of this report; On the 17th day of June, 1901, an order was made dispensing with a reference to ascertain liens and advertising therefor, and upon the same day plaintiff’s attorney noticed a motion upon all the papers and prior proceedings for an order overruling appellant’s exceptions, confirming the referee’s report and' for an interlocutory judgment of partition and sale. This motion was heard at Special Term, Part III, on the 27th day of August, 1901) which was not presided over by the justice who tried the issues, and the motion was. granted. The interlocutory judgment, in addition to confirming the report of the referee, specifically found and adjudged all the material provisions thereof, arid directed, a sale of both the real and personal property as recommended by the referee.
This is valuable' property, the original purchase price by the parties being $165,000; While title was taken in the name of the parties individually and each contributed one-half the purchase price, it appears to have been handled by them from the start in the firm name of Goldsmith & Levine, and books of account and bank accounts covering its entire management were likewise so kept. They are indebted to third parties and to each other in considerable amounts on account of the management of the property which they have apparently, at least, conducted as copartners. If there was a partnership as to the management but not as to the purchase and ownership of this real estate, then clearly the accounting as to rents and profits and the division of the other personal property should be left to be adjusted in an appropriate action for the dissolution of the copartnership when the existence or non-existence of copartnership debts may properly be determined. Furthermore it appears that subsequent to the commencement of this action the defendant brought suit against the plaintiff for the dissolution of the copartnership and for an accounting, which action is now pending. It is important to both parties that the title to this real estate should not be affected injuriously by any irregular or unauthorized practice or *209proceeding in this action. The appellant contends and the respondent concedes that the decision made upon the trial of the issues does not authorize ah interlocutory judgment. The respondent contends that the court at Special Term was authorized upon his motion and upon the facts found by the decision and by the report of the referee to formulate and enter the interlocutory judgment. We do not agree with this contention. The authority for the interlocutory judgment must be found in the decision of the court made upon the trial of the issues. (Columbia Mut. Building Assn. v. Mittnacht, 62 App. Div. 425; Reynolds v. Ætna Life Ins. Co., 6 id. 254; Foley v. Foley, 15 id. 276; Shaffer v. Martin, 20 id. 304; Hall v. Beston, 13 id. 116; Newman v. Mayer, 52 id. 209 ; Osborne v. Heyward, 40 id. 78.)
In partition, an order of reference as to the rights, shares and interests of the several parties is only authorized where one of the parties is an infant or application is made for judgment on default, which is not this case. (Code Civ. Proc. § 1545, and rule 66, General Pules of Practice.) Nor was the reference authorized even in so far as'it required the taking of an account because it appeared on the trial that neither party had individually'collected or received any rents or profits. (Rich v. Rich, 50 Hun, 199 ; Code Civ. Proc. §§ 1589, 1666.) This was also found by the referee. In fact no accounting has been or could be had since the rents and profits are in the hands of a third party. There is no authority in the decision or elsewhere for requiring an accounting and division of the personal property owned by the parties in common. But aside from these considerations the interlocutory judgment was not authorized by the decision and it cannot stand. The issues of fact might have been tried before a jury (Code Civ. Proc. § 1544), but the parties saw fit to try them before the court. It thereupon became the duty of the court itself "to decide the issues and by its decision to authorize an interlocutory judgment declaring the right, share or interest of each party in the property as far as ascertained and determining the rights of the parties therein. (Code Civ. Proc. §§ 1022, 1543, 1546; Columbia Mut. Building Assn. v. Mittnacht, supra, and other cases cited with it.)
Although there has been a mistrial (Reynolds v. Ætna Life Ins. *210Co., supra), and ordinarily in such case it might be referred back to the trial justice to make a proper decision on the evidence (Hall v. Beston, 13 App. Div. 116; Newman v. Mayer, 52 id. 209), yet in this case, owing to the lapse of time, we think the exceptions should be sustained, the interlocutory judgment reversed and the decision and order of reference vacated, ánd a new trial'granted, with costs to defendant to abide the event.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Exceptions sustained, interlocutory judgment reversed and decision and order of reference vacated, and new trial granted, with Costs to defendant to abide event.