
    John Hennessy, Appellant, v. Martin Paulsen et al., Respondents.
    (New York Superior Court
    General Term,
    May, 1895.)
    The division of an action of ejectment, authorized by section 1516, Code of Civil Procedure, is for the benefit of the plaintiff, and application therefor must be made by him; such division is inconsistent with and cannot be granted upon a dismissal of the complaint.
    It is no defense to an action of ejectment that an occupant who claims a several right in the property is not made a party.
    Judgment for defendants, overruling plaintiffs demurrer to part of defendants’ answer.
    
      John Townshend, for appellant.
    
      John Vm.cent, for respondents.
   Sedgwick, Oh. J.

The action .is in ejectment.

The complaint avers that * * * the defendants wrongfully entered into and upon and took possession of the lots of land described, etc., and have ever since continued and still continue to wrongfully hold and possess the same adversely to the plaintiff.

The answer alleged, for a further and separate defense, that there is a defect of parties defendant hereto, in that at the time of the commencement of this action one John Mulhall was, and now is, an occupant of a part of the premises described in the complaint as a tenant of one Eachel Duffy, who was and still is the legal owner and in possession of the whole of said premises, and neither of said persons has been made a party defendant herein.”

To this the plaintiff demurred on the ground that the matter alleged in the answer was insufficient as a defense. The decision dismissed the complaint. It also adjudged that the action be divided into two actions, with the above-named' defendants as parties defendant in one of such actions and all the remaining defendants as parties defendant in the other of such actions ; that the plaintiff be and he hereby is allowed to proceed herein, as he may be advised, against such others as are not above enumerated as if this action was an original and separate action against them.

It will be seen by section 1516, Code of Civil Procedure, that the latter provision of the judgment for a division of actions in ejectment is for plaintiff’s benefit and the claim for a division is to be made by the plaintiff. „ Moreover, it is inconsistent with the defendant having -final judgment that the complaint be dismissed, as in this case. This part of the judgment should be reversed.

The sufficiency of the answer is placed upon section 1502, Code Civil Procedure : “ Where the complaint demands judgment for the immediate possession of the property, if the property is actually occupied, the occupant thereof must be made defendant in the action.”

For whose benefit this enactment was made is a fundamental question. I confine the determination of this to this case as it is. The complaint alleges that the six defendants are in the wrongful possession of the premises. From the course of counsel in the argument it. is to be taken that the defendants were charged as actual occupants of the whole of the premises. The answer avers that John Mulhall is the actual occupant of part of the premises. The question is not what bearing this has upon the plaintiff’s right to recover or the quantity lie may recover, but whether, in the absence of Mulhall as a defendant, the plaintiff can recover anything. It seems clear that he can. He can recover a judgment against the defendants for a right to the possession of that part of the premises which they wrongfully occupy, or the whole, according to the proof. It would be the same if Mulhall were a defendant and if he established his right to a part; the original defendants would not be helped, for they could prove that without his presence. The rights of Mulhall, if he have any, are distinct and separate from those of the original defendants. The presence of either as party defendant is not necessary to the preservation of the full rights of the other. The present defendants could do all by proof that could be done were Mulhall a party.

On the other hand, Mulhall, considered as an occupant, has ' the legal right to be made a party to any action which may have the effect of taking his right of occupation. x To accomplish that he must be made a party. In this is the purpose of the section. He is not injured or affected by a judgment against other parties. He has a right several from those other parties. The other parties are not affected by his not being made a defendant.

In my opinion, the section in a case like the present is not, meant to require that if one occupant be sued another occupant not sued must be made a defendant, but it means that for an action of ejectment to be valid as to the property claimed, an occupant of that property must be a defendant. It would be a defense for other defendants that they are not occupants, in whole or in part. It would not be a defense that an occupant who claims a several right in the property should be made a party before the action could proceed against other occupants.

I, therefore, think that the section was not made for the benefit of occupants made defendants, but for the benefit of an occupant not made a defendant. The decision must be confined to a case where the occupant not a party has a several right.

The plaintiff was not bound to make Eachel Duffy, the landlord of Mulhall, a party.

Judgment should be reversed, with costs of the appeal, and demurrer sustained, with costs.

Fbeedmau and McAdam, JJ., concur.

Judgment sustained, with costs, and demurrer sustained, with costs.  