The findings of the trial court sustain the defense. It was within the discretion of the court before *Page 496 whom the partition proceedings were pending to direct a sale or actual partition of the premises involved (Code, § 1546; Scott v. Guernsey, 48 N.Y. 106); and a sale having been ordered the title of the purchaser is to be deemed good not only as against the parties to the action and their representatives, but against any person claiming from or under such party by title accruing after the filing of a proper notice of the pendency of the action. (Code, § 1557, sub. 2; §§ 1670, 1671.) Such was the plaintiff's position. The mortgagor was a party to the partition suit, and the mortgage under which the plaintiff claims was executed subsequent to the effective filing and indexing of thelis pendens in that suit and in regard to which the statute was complied with. It was the duty of the court below to give effect to its provisions, and having done so its judgment should be affirmed.
The judgment appealed from should, therefore, be affirmed.
All concur.
Judgment affirmed.