HISCOCK, J.
This motion must be denied. In the first place no sufficient affidavit of merits has been presented with the papers. In the second place, the question which, as I understand it, the defendant desires to raise in the case, would not present a good defense. It has been held by the interlocutory judgment that the plaintiff and defendants were tenants in common. The defendant Birch claims that they were joint tenants. Even if this is so, plaintiff was entitled to bring her action for partition. § 1532, Code.
If a sale being had defendant Birch was entitled to a different disposition of the proceeds upon the theory of a joint tenancy from that now provided upon the theory of a tenancy in common, this might be a proper basis for an application to the court to have that question further considered.
The motion is denied, with $10 costs.
Motion denied, with $10 costs.