The defendant’s attorney has mistaken the practice. The action is an equitable one. (Hewlett agt. Wood, 62 N. Y., 75.) It is true that a trial of the issues by jury is a matter of right, but the very section of the Code of Civil Procedure (sec. 1544) which provides this, shows that it is not to be treated as an ordinary common law action. Issues may be stated as provided by section 970, or they may come *28before tbe jury simply upon tbe pleadings, but in either case - the action is to be determined at special term by the court in equity. If the issues had been tried before the jury and decided in favor of the defendants, they could not have entered judgment dismissing the complaint on such findings, but the case would have gone to special term for such judgment as ■ ought to follow upon the admitted facts and the findings upon the issues. ' A default can have no greater effect. The consequence of the plaintiff’s retiring from the contest over the disputed facts, was ,simply to concede that part of the case to defendants. The parties are now to come before the court in proper form to have their rights settled upon the facts as admitted by the pleadings or determined by the default. The judgment. must be set aside, with ten dollars costs to plaintiff, to be taxed in her final bill if she succeeds.
Motion granted with ten dollars costs.
After entry of the order on this decision vacating the judgment, the plaintiff’s counsel moved, before judge Augustus Van Wyck, under the Code of Civil Procedure (secs. 1561 and 1546), for the appointment of a referee to ascertain the liens on the lands admitted to be held by the parties in common and whether an actual partition could be had.
Mr. Henderson Benedict, for the motion, argued that the judgment was merely vacated for its informality, with the privilege of recording a formal one, and that the issues could not be-referred as the Code of Civil Procedure (sec. 1544) prescribed á jury trial.
Mr. T. N. Melvin, in opposition to the motion, argued that, vacation of the judgment opened the default and that the issues-should be referred to the referee.
Van Wyck, J.The default of plaintiff at the trial term concludes plaintiff in the matter of the premises which the answer denies are owned in common, and the only premises-*29that can be partitioned are those which the answer admits are owned in common, and therefore the reference should be restricted to the ascertainment of the liens on the latter, and on the report of the referee the court must give judgment in favor of the defendants as to the premises not admitted to be owned in common and order judgment of partition of the piece admitted to be owned in common. The matter of costs will be in the discretion of the court, and it cannot be assumed that the court will do an injustice to defendants in respect thereto.
Motion granted.