The  rule  is  stated  in  Joslyn  v.  Joslyn^  9  Hun,  389,  an  action  for
an  account,  to  be  that  the  right  of  a  recovery  of  a  tenant  against  his
co-tenant  for  receiving  more  than  liis  share  of  the  rents  and  profits
of  land,  is  limited  to  the  proportional  share  of  the  net  amount
actually  received,  and  no  recovery  can  be  had  for  what  a  co-tenant,
who  is  himself  in  possession  of  the  land,  takes  therefrom  and  applies
to  his  own  use.  Where  a  co-tenant,  in  such  a  case,  rents  a  portion
thereof  and  occupies  the  remainder,  it  rests  upon  the  party  bringing
the  suit  to  show  the  net  amount  of  rent  received  by  the  defendant
from  his  tenant,  and  in  the  absence  of  all  proof  on  the  subject  there
is  no  proof  that  the  amount  thereof  is  equal  to  the  whole  annual
value  of  the  premises  held  in  common.  The  statement  in  Roseboom
V.  Roseboom,  15  Hun,  315,  is  tersely,  that  the  tenant  in  common  is
liable  to  account  only  for  what  he  receives,  not  for  what  he  takes.
Where  an  order  was  made  authorizing  a  receiver  to  rent  the  prem-
ises 'pendente  lite  to  one  of  the  defendants,  it  was  enforced  by  the
court,  and  the  proceeds  coming  to  defendant  applied  thereon.
Fisher  v.  Hersey,  85  N.  Y.  633.
§  1590.  Where  an  infant,  idiot,  lunatic,  or  liabitual  drunkard,  holds  real  prop-
erty, in  joint  tenancy  or  in  common,  the  general  guardian  of  the  infant,  or  the
committee  of  the  idiot,  lunatic,  or  habitual  drunkard,  may  apply  to  the  supreme
court,  or  to  the  county  court  of  the  county,  or  to  a  superior  city  court  of  the  city,
wherein  the  real  property  is  situated,  for  authority  to  agree  to  a  partition  of  the
real  property.
