Misc.] Supreme Court, December, 1921. Louisa Stamp obtained title to the premises by adverse possession and this question is by no means free from doubt. There is nothing to justify the conclusion that John Stamp was ever personally in possession. If title was gained by adverse possession, it was by Louisa Stamp. Louisa, the widow of Michael Roberts, was at all times entitled to dower in the premises, and during the minority of her children Louisa and Emma, was their guardian in socage, and entitled to possession of the premises because of their undivided twothirds interest. While it is unquestionably true that the possession of one of several tenants in common is, presumably, the possession of all (Allen v. Arkenburgh, 2 App. Div. 452; Berger v. Horsfield, 188 id. 649), nevertheless, it is equally true that one of several tenants in common may acquire title against his co-tenants by adverse possession. In order to do so, however, the possession must be such as to constitute an exclusion or ouster of the co-tenants. Florence v. Hopkins, 46 N. Y. 182, 186. This may be evidenced by an open, notorious and adverse occupation under a claim of right. Culver v. Rhodes, 87 N. Y. 348. Was the occupancy by Louisa Stamp sufficient to amount to an ouster of her stepson and her own daughters? It may be conceded that it would have been sufficient as against a stranger, but the other owners were not strangers; two of the three were of her own blood, and the third was her husband's child whom she had evidently brought up, as he was only fourteen years old at the time of the death of his father, Michael Roberts, and was less than six when she married Michael Roberts. The widow, Louisa, originally became possessed of the property rightfully, as dowress and guardian in socage, and not adversely to her husband's heirs-at-law. Her occupancy must be construed as subordinate to the lawful claim of the heirs Supreme Court, December, 1921. [Vol. 117. at-law, unless there was a definite, open and unquestionable change of position. Knolls v. Barnhart, 71 N. Y. 474. The authority in this state most favorable to the plaintiffs is Zapf v. Carter, 70 App. Div. 395. A similar occupancy by a dowress, with no more convincing evidence of a claim of title than occurs in this case, was there held to have ripened into a complete title valid against the heirs-at-law of her husband. Two points are to be noted, however, in respect to the case of Zapf v. Carter: (1) the persons against whom the widow was held to have acquired title by adverse possession were not her relatives, and no position of confidence on the part of the widow or of filial respect and duty on the part of the heirs-at-law existed to deter the dowress on the one hand from ousting the heirs-at-law, or the heirs-at-law on the other from demanding possession; and (2) the plaintiff in the Zapf case had been the executor of the widow and had learned of the outstanding title while he had been acting as such and had then purchased it for his own benefit, and Mr. Justice Spring, in the course of his opinion in that case, said: "The course of the plaintiff in procuring the conveyances from the two sisters of Ashley does not require us to scan with too much minuteness the title of the defendant and her devisor. The courts have uniformly condemned the acts by which an agent obtains title to property to undermine his principal, and this conduct of the plaintiff is reprehensible in the extreme, although the referee, by evidence which may be said to sustain it, has found he apprised the vendors he was buying the land for himself." In the instant case, the repairs and improvements were made by John Stamp and may well have been a consideration for his use of the property. The taxes Misc.] Supreme Court, December, 1921. and local assessments presumably were paid out of the rents. While some of the local assessments were many times larger than the rents for any one year, it does not appear that they were larger than the aggregate value of the use and rents received. What accountings, if any, were had between the mother and her children are unknown, but it may well be that the children received none, and, in fact, may not have known of their interest in the real estate. It is true that from the time the children of Michael Roberts became of age, they could have maintained an action of ejectment against their father's widow, thus requiring her to seek the admeasurement of her dower. Jackson v. O'Donaghy, 7 Johns. 247. But this circumstance is not conclusive of the nature of the occupancy. As long as an assignment of dower is not required, the dowress may well be considered in possession by consent. Boyer v. East, 161 N. Y. 580. I am loathe to hold, unless compelled to do so, that a mother thus acquired title against her own daughters. On the whole, I am of the opinion that there has been a failure to prove an occupancy under claim of title adverse to that of her stepson and daughters. These considerations would be less strong in the case of Edward Smith, were he the sole record owner, but as his interest is but an undivided one, I am of the opinion that there was no change in the holding as to him any more than as to Emma Hoover and her heirs, or William Roberts and his heirs. Judgment is, therefore, granted in favor of the defendants, with a single bill of costs to the defendants who have appeared. Judgment for defendants. Supreme Court, December, 1921. [Vol. 117. JOHN E. MADDEN, Plaintiff, v. JOHN H. ROSSETER, Defendant. (Supreme Court, New York Special Term, December, 1921.) Receivers commissions and counsel fees - partnership – commissions on delivery of valuable horse by receiver to plaintiff fixed at reasonable amount to be paid by defendant. Under a contract by which plaintiff and defendant became partners or joint adventurers in a stallion defendant was to keep the horse in California until the end of the season of 1920 and plaintiff was to keep him in Kentucky for the seasons of 1921 and 1922, after which time arrangements satisfactory to both parties were to be made. At the end of the season of 1920 defendant refused to deliver the horse as agreed. Thereafter in an action for the dissolution of the partnership, an order granting mandatory injunction directing the delivery of the stallion to plaintiff was affirmed on appeal, and the receiver appointed to carry out the order did so without litigation or ancillary receivership in California and delivered the horse to plaintiff on May 23, 1921, in good condition. Held, upon motion to fix the compensation of the receiver, etc., that plaintiff was entitled to be reimbursed for the taxable expenses caused by defendant's unwarranted acts, and though the dissolution action was undisposed of, the services of the receiver, admittedly worth $5,000, and those of his counsel, proven to be worth $500, should be paid by defendant, and it is so ordered. MOTION for receiver's commissions and counsel fees. Kalish & Kalish, for plaintiff. Thomas F. Kane and John B. Dahlgren, for defendant. Henry L. Franklin, for receiver, Franklin L. Brooks. GUY, J. Motion by a receiver to fix the compensation due him; also his counsel's fees. The receiver was Misc.] Supreme Court, December, 1921. directed to and did take from the defendant in California and deliver to plaintiff in Kentucky a valuable stallion named Friar Rock. Plaintiff first owned the horse. In 1918 plaintiff sold defendant a half interest and they became partners or joint adventurers in the horse under a contract by which defendant was to keep the horse in California until the end of the season of 1920, and plaintiff was to keep him in Kentucky for the seasons of 1921 and 1922; thereafter new arrangements mutually satisfactory were to be made. The fees wherever received were to be divided equally. When the end of the season of 1920 came defendant refused to deliver the horse to plaintiff. Plaintiff sued for a mandatory injunction for the delivery of the stallion to him; for a receivership to effect the delivery; also for a dissolution of the joint adventure or partnership. In February, 1921, an order was made granting a mandatory injunction directing the delivery of the horse to the plaintiff and appointing the receiver to carry out such delivery. The defendant appealed from the order, and, on appeal, the order was affirmed. Thereafter the receiver carried out the order with tact and diplomacy, avoiding any litigation or ancillary receivership in California. He delivered the horse to plaintiff on May 23, 1921, in good condition. It is admitted that the receiver's services, if they can now be directed to be paid for prior to the dissolution of the partnership or joint adventure, were worth $5,000, and those of his counsel are proved to be worth $500. While the dissolution action does not appear to have been disposed of, as to the primary relief sought the plaintiff is the winner, and has prevailed by reason of the affirmance on appeal and execution of the mandatory injunction for the delivery of the horse to him under the contract which entitles him to keep it during the |