be partitioned; and a plaintiff was not permitted to unite as defendants those not seized of a like estate in common with him. Sullivan v. Sullivan, 66 N. Y. 37. But if he did so, and proceeded to final judgment, it was not without jurisdiction of the parties, as well as the subject-matter, and it was effectual as against an attack collaterally. Howell v. Mills, 56 N. Y. 226. And although the statute declares that "no person other than a joint tenant, or a tenant in common, of the property, shall be a plaintiff in the action," (Code Civil Proc. § 1538,) if, as plaintiff, a person having the present estate brings such an action against those having only a vested estate in remainder, and prosecutes it to judgment, it is within the jurisdiction of the court; the judgment and its execution cannot be questioned collaterally, and it will be deemed conclusive upon the parties. Cromwell v. Hull, 97 N. Y. 209; Reed v. Reed, 107 N. Y. 545, 14 N. E. Rep. 442, affirming 46 Hun, 212. And such is the applicable effect declared by statute upon the confirmation of the sale by final judgment. Code Civil Proc. §§ 1557, 1577 In view of this situation, the question arises whether the county court had power to make the order appealed from; for, if that court possessed such power, the order must be affirmed, as this court will not review the exercise by the county court of its discretion. Reilley v. Canal Co., 102 N. Y. 383, 7 N. E. Rep. 427. One reason urged in support of the motion, and of the power of the court to grant it, is in the fact that the moving parties were infants when the sale of the property was directed by the judgment and made. It appears that Thomas Ē. Prior was then 15, and Laura A. Prior 8, years of age. They had the vested estate in remainder, limited only upon the life-estate of the defendant Hall. The apparent purpose of the statutory rule, and of the judicial effect given to it, applicable to such cases, was to give unqualified support to the final judgment of confirmation, (Woodhull v. Little, 102 N. Y. 165, 6 N. E. Rep. 266; Jordan v. Van Epps, 85 N. Y. 427;) and, if the parties had been sui juris, there would seem to be no support for the motion. The sale was by the interlocutory judgment directed, and pursuant to it had, nearly six years before this motion was made, and four years had elapsed before any question, so far as appears, was raised in behalf of those infant parties, with a view to relief, when the motion to set aside the sale was made and denied. As a general rule, in the absence of statutory inhibition, courts have control over their own proceedings, and may deal with them as justice requires, (In re City of Buffalo, 78 N. Y. 362, 370; Dietz v. Farish, 11 Jones & S. 87,) and will usually exercise such power for the protection of the innocent, and of those who have acted in good faith in the matter, (In re Price, 67 N. Y. 231.) The statute has prescribed certain times within which motions may be made for relief on the ground of irregularity or of errors in fact. Code, §§ 1282, 1290, 1291. But this motion does not seem to come within the provisious of those sections. This was neither a case of irregularity, strictly as such, nor of error in fact. When the action in its progress reached the point where it appeared that partition could not be had without great prejudice to the owners, it was the duty of the court to have dismissed the complaint, because the statute so provided and declared that no sale could be made. The action nevertheless proceeded to judgment, directing the prohibited sale. This excessive exercise of judicial power was error which, if not waived, rendered the interlocutory judgment voidable; but may not necessarily have been available on review, because no exception was taken on the coming in of the referee's report, and no objection was made to such judgment, or to the sale or its confirmation.

The question, therefore, is whether the final judgment was conclusive upon these minors as against the purchaser. The rights of those infants were in the care of guardians, who failed to do what, it is said, the interests of their wards required of them. Is the court, in which the proceedings were had, powerless, without the aid of fraud for its support, to grant them relief? They were in some sense the wards of the court, and it was by the court that

their interests were placed in the care of guardians ad litem. The court has determined that their rights were not fairly taken care of by the means which it provided for that purpose; and therefore sought, so far as it could, to restore to them that of which they were deprived by its proceedings, conducted in violation of the statute, to their prejudice. In Reed v. Reed the question arose upon a motion between the purchaser at the sale and the parties to the partition action for whose benefit the sale was made; and the court held that, inasmuch as it had jurisdiction of the subject-matter and parties, the final confirmation was conclusive upon such parties. In view of the doctrine of that case, the situation, after final judgment, was no different, in effect, than it would have been in case where the proceedings resulting in a sale and confirmation were in no respect contrary to the provisions of the statute. It was there said, on the review in the supreme court, (46 Hun, 212,) that the fact that some of the parties were infants did not, as against them, qualify the conclusive effect declared by the statute of the final judgment; but that, if there was any occasion for it, the remedy in their behalf, for any injury suffered, was against the guardians, and the sureties upon their bonds. In the present case the infant parties seek relief against the judgment and its effect; and the court determined that the purchaser at the sale made pursuant to the judgment has not a standing in relation to the sale which denies to the moving parties the means of relief as against her, and that reasons exist why it should be granted. Whatever our views may have been if the question were res nova, we think the case comes within the doctrine before referred to, declared in Reed v. Reed. There the purchaser was required to complete his purchases because the judgment confirming the sale was conclusive against all the parties to it, although some of them were infants. The principle applied there seems applicable to the question here. Upon the authority of that case the order must be reversed, on the sole ground that the county court had no power to make it.

BARKER, P. J., HAIGHT and DWIGHT, JJ., concur.

NOWELL et al. v. GILBERT, Sheriff.

(Supreme Court, General Term, Fifth Department. October 19, 1888.) 1. SHERIFFS AND CONSTABLES-WRONGFUL LEVY-ESTOPPEL-RECITAL IN BOND. An undertaking given by a sheriff under Code Civil Proc. N. Y. § 1704, to procure the return of property levied on by him, and replevied by a claimant, reciting that certain property specified in claimant's affidavit had been replevied, and that defendant desired its return, concluding in accordance with the statute, does not estop the sheriff, in an action by the claimant against him for the property, from proving that all the goods mentioned in the affidavit were not levied on, replevied, or returned to him.

2. SAME.

Such an undertaking, if filed and used by the sheriff to procure the return of the property, though signed only by sureties, and not by him, would have the same effect, as evidence against him, as if signed by him.

Appeal from judgment on report of a referee.

Action by Samuel J. Nowell and William A. Presby against Frank T. Gilbert, sheriff of Erie county, to recover the possession of certain personal property. Judgment for plaintiffs on the report of a referee, and defendant appeals. Argued before BARKER, P. J., and HAIGHT, DWIGHT, and BRADLEY, JJ. Baker & Schwartz, and B. F. Drake, for appellant, Eugene M. Sanger, for respondents.

BRADLEY, J. The plaintiffs were wholesale dealers in woolen goods in the city of New York, and sold to one Moses Ruslander 48 pieces of such goods, which is the property in question. The action is founded upon the charge

that the plaintiffs were induced by fraud on his part to sell and deliver such goods to him; and the evidence was sufficient to warrant that conclusion. That question of fact will therefore be deemed disposed of by the finding of the referee. The defendant, on November 18, 1886, by virtue of six executions issued upon judgments entered the day before upon confessions of Rus lander, amounting to about $28,000, levied upon a stock of goods in a store occupied by the latter in the city of Buffalo; and afterwards on the same day, and after the levy, Ruslander made a general assignment for the benefit of his creditors. The plaintiffs claiming that the goods so sold by them were in the stock upon which the defendant had levied the executions, and having demanded of him the possession of them, commenced this action for their recovery on the 23d day of that month. The property taken upon the affidavit and requisition from the stock of goods was, pursuant to proceedings duly taken for that purpose in behalf of the defendant, returned to the latter.

The main question, and the most important one requiring consideration, is whether the defendant was, by the undertaking upon which the return of the property was procured, estopped from asserting that he had not had possession of all the property mentioned in such affidavit, and to recover which the action was brought. In the affidavit and in the complaint the property is described as 48 pieces of woolen goods, manufactured into clothing and unmanufactured; and the plaintiffs gave evidence tending to prove, and the referee found, that the property so described was of the value of $2,268.87. The question arose upon exceptions taken to the exclusion of evidence offered by the defendant to prove that, at the time the executions were issued to the defendant, Ruslander had, in due course of his business, sold and disposed of more than three-fourths of the property mentioned in the complaint, and did not then have in his possession or under his control more than one-fourth of it; that the defendant did not at any time have in his possession more than one-fourth of such property; and that the value of such of the property so described, as in any manner came to his possession, did not exceed $500. The evidence was excluded, upon the objection that it was in conflict with the admissions in the undertaking made on the part of the defendant for the return of the replevied property to him; and the referee held that the defendant was at liberty to give evidence of the value of all the property described in the affidavit, but that any evidence tending to show that the defendant had not the possession of all the property so described at the time the requisition was executed by the coroner was not admissible; to which ruling exception was taken. The undertaking was executed by two sureties, and not by the defendant. And in it was the recital that "whereas, the plaintiffs in this action have claimed the delivery to them of certain chattels specified in the affidavit, made in behalf of the plaintiffs for that purpose, of the alleged value of two thousand two hundred and sixty-eight dollars and twenty-seven cents, and have caused the same to be replevied by the coroner of the county of Erie, pursu ant to chapter fourteen of the Code of Civil Procedure, but the same has not yet been delivered to the plaintiffs; and whereas, the defendant is desirous of having the said chattels returned to him." It then proceeds to conclusion, as required by statute. Code Civil Proc. § 1704. The fact that the defendant did not sign the undertaking, did not, for aught that appears in the evidence, deny its conclusive effect upon him, as well as upon the sureties who did execute it. It was prepared by his attorney, made in his behalf, and used to produce the restoration to his possession of the property taken by the coroner; and he was estopped by the undertaking from denying his previous possession of the property replevied. Diossy v. Morgan, 74 N. Y. 11; Harrison v. Wil kin, 69 N. Y. 412; Decker v. Judson, 16 N. Y. 439.

But, to support the ruling of the referee, the fact must be deemed conclusively established by estoppel that the property replevied embraced all that was mentioned in the affidavit. The recital, although not requisite to the

statutory undertaking, was evidently made to explain its occasion and purpose. The estoppel arose from the defeated delivery to the plaintiff founded upon the right, and its exercise, to require the return to the defendant of the property taken by the coroner, for which purpose the undertaking prescribed by the statute was required. This proceeding rests upon the assumption that he previously had the possession of the property of which he had been divested by the execution of the requisition; and the right to thus obtain the return did not depend upon the replevy of all the property described in the affidavit or complaint, but for the return of such portion of it, if not all, as had been taken from him upon the plaintiffs' requisition. With this in view the statute provides that, for the purpose of obtaining such return, the defendant must serve upon the officer a notice that he requires a return of the chattels replevied. Code Civil Proc. § 1704. It also contemplated by the statute that the officer may replevy less than the whole of the property described in the affidavit, and he is required to do so when a part only can be found; but, for the purposes of the proceeding for the return of it in such case, the value of the whole, as stated in the affidavit, when there stated in the aggregate only, will be deemed the value of the portion replevied. Id. § 1698. In the present case the undertaking for the return of the property necessarily represented twice the value of the entire property, as stated in the affidavit, without reference to the quantity of it taken by the coroner. The recital in the undertaking may be broad enough to import that all the property in question was taken by him, and may properly have been treated as evidence; but in view of the fact that such recital was not essential to the purpose for which the undertaking was made, and added nothing to its force to produce a return of the property, it is difficult to see that it is conclusive as such, or how it can be effectual as an estoppel. Talcott v. Belding, 4 Jones & S. 84. It is a mere admission, not of record, but in pais; and, to give to it the effect of estoppel, the plaintiffs must by it have been induced to so act, or to refrain from taking action, that the denial of the truth of the recital would in the legal sense prejudice them. Malloney v. Horan, 49 N. Y. 111; Blair v. Wait, 69 N. Y. 113; Winegar v. Fowler, 82 N. Y. 315.

Such was the case of Dezell v. Odell, 3 Hill, 215, where a party having assumed the relation of receiptor of chattels levied upon, and promised to deliver them to the officer, was held estopped from withholding them upon the assertion of title in himself; because in reliance upon his recognition of the effectual force of the levy, and his promise to deliver the property to the officer, the latter was induced to leave it in his possession. Here the purpose of the defendant was to obtain the return of the property replevied, and that was the only effect produced by the proceeding, aided by the undertaking, to which the recital relied upon by the plaintiffs in no essential manner contributed. The proceeding was wholly statutory, and was a right in the defendant not dependent upon or subject to any control or acquiescence of the plaintiffs. It was by its exercise in the manner provided by the statute, and its result, that the plaintiffs were denied the possession of the property replevied, and its return to the defendant accomplished. It would therefore apparently seem that the plaintiffs were in no different situation in any respect than they must have been if no such recital had been put into the undertaking. But it is said that by this admission, furnished by the recital, the plaintiffs may have been induced not to take any steps to replevy the residue of the goods, assuming that the coroner had not taken all of them, for which the statute makes provision, (Code Civil Proc. § 1713,) or that in reliance upon it the plaintiffs may have omitted to serve upon the defendant notice that for the purposes of the action they abandoned so much of the claim as related to the goods not replevied, (Id. § 1719;) and that, but for the situation so represented, they may have sought to charge the defendant with liability in the action for goods not replevied, (Id. § 1718.) It may be

observed that the information of the manner of the execution of the requisition is or should be furnished by the return which the officer is required to make; and, if he has omitted to replevy any portion of the property described in the affidavit, his return must state the cause of such omission. Id. § 1715. It is upon the return that the plaintiff is supposed to rely for information of the property taken by the officer in an action to recover the possession of personal property for the purposes before mentioned; and, for the purpose of relieving the recital in the undertaking from the character and effect of estoppel, it is not necessary to hold that the officer's return is conclusive upon the parties of the facts legitimately stated in it. The purpose of the undertaking is simply to obtain the return of the property replevied; and to give to it, by reason of an unnecessary recital in it, such effect as to close the door to inquiry into the goods which were in fact replevied, would be extending its conclusive effect beyond its statutory and apparent purpose; and in such case a burden or liability, beyond that apparently or in fact existing or assumed, might be imposed. This, we think, is not supported by any principle of law applicable to the situation presented in this case; but, on the contrary, the question whether all of the goods described in the affidavit, or a portion of them only, were replevied, is open to inquiry in the action upon which the defendant should have been permitted to give evidence. Weber v. Manne, 42 Hun, 557. In Coleman v. Bean, 1 Abb. Dec. 394, 42* N. Y. 94, affirming 14 Abb. Pr. 38, the question was one of validity of an undertaking made to procure the discharge of an attachment; and it was held, for the purpose of that question, that the recital in the undertaking that an attachment had been issued in the action was conclusive evidence of the fact, and that the defendants, who were sureties, were estopped from proving that none had been issued. There a judgment had been obtained in the original action, and they were held liable upon their undertaking to pay it. In Harrison v. Wilkin, 69 N. Y. 412, the question in principle was the same. There the usual undertaking was given on the part of the plaintiff, in an action to recover the possession of a quantity of iron water-pipe, and the undertaking recited that the plaintiff claimed the delivery of 90,000 pounds of cast-iron water-pipe; then proceeded to express the undertaking, as required by statute. The property was not in fact taken by the officer, but, by stipulation of the parties to the replevin action, the plaintiff took the possession of the property, and appropriated it. The action proceeded, and the defendants recovered; and, in the action against the sureties upon the undertaking, it was held that the defendants were, by the recitals in the undertaking, estopped from asserting its invalidity. And in Decker v. Judson the principle applied was not substantially different. In those cases the proposed defense went to the validity of the undertakings to support liability for the amounts of the recoveries in the actions in which they were given; while here there is no question about the validity of the undertaking, or the liability upon it for the execution and payment of any judgment which may be recovered in the action. It is whether the recitals referred to conclude the defendant, upon the trial of the action in which it was made, from showing that the execution of the requisition embraced only a portion of the property mentioned in the affidavit upon which it was indorsed.

In Diossy v. Morgan, 74 N. Y. 11, upon which it is said the referee relied as authority for his ruling, no such question arose. In that case there was no question as to what was the property replevied. The defendant took proceedings for its return, and gave the requisite undertaking, reciting the taking of it by the sheriff, at the suit of the plaintiff, and that the defendants were desirous of having it returned to them. The court held that the defendants were estopped by their undertaking from denying that they had the possession of the property at the time of the commencement of the action; and, so far as it was essential for the purposes of that case, Judge RAPALLO, who de