Rabinowitz v. Post

Order staying proceedings under the judgment of partition and remitting the matter to the referee for further proof reversed upon the law and the facts, without costs, and the motion denied, without costs. The facts advanced as being capable of proof on a rehearing before the referee furnish no basis for staying proceedings under the judgment of partition herein. The right of Ella Beyer to mortgage her undivided one-half interest was absolute, and the right of the plaintiff, as assignee *719of that mortgage, to foreclose the same and enforce a purchase of the undivided one-half interest under said foreclosure judgment was absolute. The right to enforce partition by the plaintiff may not be questioned. (Civ. Prac. Act, § 1012.) Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur.