
    (68 Hun, 155.)
    MIDDLEBROOK v. TRAVIS et al.
    (Supreme Court, General Term, First Department.
    March 17, 1893.)
    Pleading and Proof—Former Action Pending.
    A plea of another action pending is not sustained by proof of the existence of another action begun on the same day as the one in which the plea is filed, since the law does not regard fractions of a day
    Appeal from special term, New York county.
    Action by Caroline A. Middlebrook against Mary E. Travis, James O. Milts and Virginia H. Mills for partition. Defendants, appeal from an interlocutory judgment of sale and partition.
    Affirmed.
    For former report, see 21 N. Y. Supp. 398.
    Argued before VAN BRUNT, P. J., and O’BREEN and FOLLETT, JJ.
    Thomas Nelson, for appellant Travis.
    Edward Wells, Jr., for appellant Mills.
    John M. Powell, (William M. Powell, of counsel,) for respondent.
   O’BRIEN, J.

Apart from the question of costs, in view of the statement upon the argument, which was not denied, that the premises have been sold for a satisfactory sum, no useful purpose is to be served by interfering with the judgment under which such sale took place. The defendants (appellants) insist, that, having pleaded the pendency of another action, this was fatal to the rendering Of a judgment herein. It-appears that the summons in both actions were served on the same day, and of the 27 parties to both actions only 10 are common to both; the difference in parties resulting from the plaintiff in this action having included the husbands of the tenants in common as parties, while in the action claimed to have been first commenced and pleaded in bar such husbands were not made parties, but tenants under lettings of some part of the premises were included as parties defendant. While doubt has been expressed as to whether husbands of the owners of the fee are necessary parties, and while it is unquestioned that they are proper parties, it is evident that in these possessory actions tenants under lettings in possession should be joined in the action. The only point, however, urged upon this appeal, is as to the effect of the defense of a former action pending upon the right to enter the judgment appealed from. The summons and the complaint in the action thus referred to were dated before the plaintiff therein had acquired any right to commence such action; and, if we take the date of the commencement of the action to have been at the time of the service of the summons, then, as the summons in this action was served on the same day as the summons and complaint in the other action, and as the law does not regard fractions of a day, the judge was not precluded, upon this action being first ready for trial, from proceeding to judgment. Moreover, when this action was commenced, there was no action pending against the plaintiff, because she was not served with the summons in the other action until after she had commenced her own by the service of a summons on certain of the defendants. We think, therefore, that, as it appeared upon the trial that a prior action was not pending between the same parties, the defense was not made out, and judgment was properly awarded to plaintiff. The judgment appealed from should therefore be affirmed, with costs and disbursements.

FOLLETT, J., concurs.

VAN BRUNT, P. J.,

(concurring.) The plea contained in the answer of the defendant Travis that, at the time of the commencement of this action, there was an action pending in this court brought by this appellant against the other parties to the action, with the exception of such as were husbands of some of the tenants in common, and also against the tenants in possession, and that certain parties (naming them) were tenants in possession, and were not parties to this action, was a good plea in abatement. Parties in possession of property sought to be partitioned are not only proper parties, but necessary parties, because without their presence their rights cannot be adjudicated upon in such a manner as shall be binding upon them. A party in possession, with an unrecorded deed, by his possession gives notice to all the world of the existence of his claim; and, if there is any outstanding claim by any person in possession, the only way in which it can be cut off is by making him a party to the action where the premises are sought to be partitioned and sold. Therefore, if there are parties in possession, and such parties are not made defendants in the partition action, it is a defect which any of the defendants have a right to avail themselves of; and, if the defendants in this action had proven that tenants in possession were not made parties, it would have been the duty of the court to have refused a decree until those parties had been brought in, so that they could be bound by it. But the difficulty with the defendants’ position is that, although they have alleged in the answer, and requested the court to find, that certain tenants in possession were not made parties, there is no proof of the fact, and it does not appear to be admitted anywhere in the record. The claim in respect to the husbands of some of the tenants in common being necessary parties cannot be supported, because a husband has no interest whatever in the real estate of his wife unless she dies possessed of the same, having had living issue of the marriage. For the failure to prove the fact stated in the plea in abatement, it is necessary to concur in the opinion of Mr. Justice O’Brien for affirmance.  