
    CORNELIUS GEORGE CROWLEY, Respondent v. MARY MURPHY, Impleaded, etc., Appellant.
    
      Ejectment by grantee in name of grantor under Section 1501 Code Civil Procedure, amendment by bringing in as party plaintiff one of two grantors in the deed to the grantee omitted to be made a party, when not allowed—Section 452 has no application—Laches.
    
    Cornelius George Crowley and Ellen Daly conveyed the premises involved in this action to Joshua C. Sanders. At the time of the conveyance one Mary Murphy was in actual possession claiming under a title adverse to the grantors of Sanders. This action was brought by Sanders in the name of Cornelius George Crowley only, and is maintained in his name by said Sanders against Mary Murphy and one Martin Donohue. Issue was joined by the answer of Mary Murphy, and a reply thereto. The issue was brought to trial in May, 1889, and the jury disagreed. On this trial the facts showing that Ellen Daly, at the time of the deed to Sanders, had a life interest in an undivided moiety of the premises, and a dower right in the whole, appeared. The issue was again brought to trial in October, 1889, the defendant Mary Murphy endeavored to procure a postponement of the trial, but her motion therefor was denied; thereupon plaintiff introduced his evidence, and said defendant being unprepared with any evidence, a verdict was rendered in favor of plaintiff and judgment entered thereon. Thereafter defendant Murphy moved for a new trial under Section 1525 Code Civil Procedure upon payment of costs; the motion was granted and a large sum paid for costs. Thereafter, in March, 1890, the issue came on for trial a third time and at the close of plaintiff’s case defendant Murphy moved to dismiss the complaint on the ground that the evidence failed to establish a cause of action; the motion was denied, and thereupon the court stopped the trial and dismissed the j ury with leave to plaintiff to move at special term to amend his complaint. A few days thereafter plaintiff’s attorney moved for an order bringing in Ellen Daly as a party plaintiff, and that the summons and complaint be amended in conformity therewith.
    The motion was made on the petition of Ellen Daly, setting forth that she was a grantor with Cornelius George Crowley and that she had a life interest in an undivided half of the premises at the time when the deed was made to Sanders, and praying that an order be made makin ' her. a party plaintiff; and on an affidavit made by one of plaintiff’s attorneys. The point that the action was not maintainable in the name of Cornelius George Crowley alone does not seem to have been taken before the last trial. The motion was granted at special term with out costs.
    
      Held, (1.). That in view of the trials, the payment of costs by defendant and the laches of plaintiff in moving, the motion should have been denied and plaintiff left to begin anew.
    (2.) For a more important reason the motion should have been denied and plaintiff remitted to a new’action, viz: that defendant having availed herself of the statutory right to a new trial given by section 1525 of the Code of Civil Procedure, and paid the costs required by that section, she was entitled to a new trial on the same issue as those on which the previous trial was had; • and that the order appealed from would present new issues.
    (3.) That if Ellen Daly was not a necessary party the motion should not have been made, and it was, therefore, unecessary to determine whether she was or was not a necessary party.
    (4.) The order should be reversed.
    Before Freedman and Truax, JJ.
    
      Decided June 27, 1890.
    Appeal from an order made at special term allowing the plaintiff to amend the summons and complaint in this action by adding the name of one Ellen Daly, as party plaintiff, and by adding to the complaint such allegations as might be appropriate to set forth her interests in the premises mentioned in the complaint.
    The action was commenced in the year 1888, in the name of Cornelius Gfeorge Crowley, grantor, and Joshua C. Sanders, grantee, against Mary Murphy and others, under section 1501 of the Code of Civil Procedure, to recover the possession of certain premises situate within the city and county of New York. The complaint was subsequently amended by striking the name of Joshua C. Sanders therefrom.
    The facts sufficiently appear in the opinion and head note.
    
      John Hayes, attorney, and David B. Ogden of counsel, for appellant, argued:—-
    I. The plaintiff was guilty of laches in not sooner applying for the order. The defect was known when the complaint was drawn, and was sustained by evidence on the trial before Mr. Justice O’Gorman. An order permitting an amendment of the complaint will not be granted where the party applying has been guilty of laches. Goudy v. Poullain, 2 Hun, 218; Yeet v. Wicker, 10 How. 193 ; or as was said in Butter v. Fairly, 17 State Rep. 109, an amendment will' not be allowed where counsel before entering on the trial, knew the conditions of the pleadings and chose to experiment with the other side as to their diligence in discovering defects.
    II. Section 452 is not applicable to the present case, for the reason that it is not shown that Ellen Daly has, and as a matter of fact she cannot have, any interest whatever in the subject matter of the action or in the real estate, the title to which is sought to be affected thereby ; nor is she sought to be made a party because she has any such interest, but only because she was a grantor in the deed to Sanders. No matter what interest she may have had in the property, it would not entitle the plaintiff to join her as a party plaintiff in this action unless she had been one of the grantors in the deed to him. Furthermore, in such cases it is the uniform practice to make the party applying to be admitted to the action a party defendant in the suit, and there is no precedent for joining a party plaintiff in that way. Nor can the motion be sustained under the first part of this section, which provides that where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. An amendment under this section is. only allowed where the plaintiff shows a cause of action in himself, but owing to the absence of other parties there can be no complete determination of the controversy.' In the present case no determination whatever can be had in the action as it stands at present, for the reason that the plaintiff has not complied with the provisions of the Code of Civil Procedure by bringing his action in the name of his grantor. The plaintiff is suing under section 1501 of the Code. That section provides that an action of ejectment may be maintained by a grantee in the name of his grantor where the conveyance under which he claims is void because the property conveyed by it was held adversely to the grantor at the time of the conveyance. In the case of Hasbrouck v. Bunce, 62 N. Y. 483, this provision was construed, and it was held that in order to maintain the action all the grantors in the deed must be joined as plaintiffs. See also Sayre v. Frazer, 47 Barb. 26 ; Newman v. Marvin, 12 Hun, 236 ; McMahon v. Allen, 12 How. 89. Nor does the enactment of section 1500 of the Code of Civil Procedure change the rule as was contended by the plaintiff s counsel upon the argument of this motion. This action is not brought by one or more of the joint tenants or tenants in common to recover their share. It is not brought under that section ; it is brought under section 1501 to recover the whole property; and it cannot be supposed that section 1500 intended to authorize a grantee to commence as many actions under section 1501 as there were grantors in his deed. It is true that section 1500 was enacted after the decision of Hasbrouck v. Bunce, and that in the Revisers’ notes to the Code it is expressly stated that the object in passing that section was to change the rule laid down in Hasbrouck v. Bunce. An examination of Hasbrouck v. Bunce, however, will show that it decided two questions: First, that under the law as it then stood more than one, but less than all of the tenants in common could not bring ejectment. This rule was changed by section 1500. Hasbrouck v. Bunce, also held further that an action under section 1501 must be brought in the name of all the grantors, and this rule has never been changed, and it is so reasonable that it can hardly be supposed that it will.
    III. There is, however, another and conclusive reason for reversing the order appealed from. This is an action of ejectment. The defendant has availed herself of the statutory right given by section 1525 for a new trial. This new trial must be of the same issues as those which were tried in the first action. To amend the complaint so as to include different issues and to compel her to try them would be to deprive her of the statutory right secured to her by section 1525. One of the defences set up by the answer in the action is a title obtained by adverse possession. If Ellen Daly is intruded into this case as a plaintiff it will become necessary for the defendant in order to sustain her defence to prove an adverse possession against her as well as against Cornelius George Crowley, and it is evident that to sustain such an issue may be more onerous than it would be to sustain it against Cornelius George Crowley if he were the sole plaintiff. The plaintiff had a plain remedy, which was to discontinue his action and recommence.
    
      Townsend & Mahan, attorneys, and Frank J. Mather of counsel, for respondent, argued:—-
    
      I. The order is not appealable within any of the cases enumerated as appealable within section 1347 of the Code of Civil Procedure. (1.) The order in no respect changes the issue already raised by the pleadings. The issue is the same. The defence the same. It does not involve the merits. The defendant, in answering the complaint, waived any objection as to defect of parties, which could only be taken by demurrer. Hand v. Burrows, 15 Hun, 481; Hasbrouck v. Bunce, 62 N. Y. 483. (2.) It does not affect the rights of the defendant, if she has any, as claimed in her answer. If the order had imposed costs or other burden, on either party, or affected the alleged right of either party, (and it does not,) in would have been appealable by such party. Hand v. Burrows, (supra).
    
    II. The order was made in strict compliance with the mandate of section 452 of the Code of Civil Procedure. It is obvious, therefore, that it is non-reversible. Consequently it is not appealable.
    III. While under section 452 of the Code, it is mandatory upon the court to grant the order appealed from, and the court has no discretion to refuse it; • yet, even if the discretion of the court alone had been invoked, the order should have been granted under section 723 of the Code. The amendment granted by the order, does not change in any respect the claim of the plaintiff, or the defence interposed by defendant; nor does it affect the substantial rights of the defendant, if she has any. The order, therefore, is not appealable if it had been made under the discretionary power of the court. Sayre v. Frazer, 47 Barb. 26 ; Thomson v. Kessel, 30 N. Y. 383, 391; McGown v. Leavenworth, 2 E. D. Smith, 24; N. Y. Ice Co. v. N. West. Ins. Co., 23 N. Y. 357; Salters v. Genin, 10 Abb. 478; Schermerhorn v. Wood, 30 How. 316 ; Price v. Brown, 98 N. Y. 388.
    
      IV. Under section 1500 of the Code of Civil Procedure, the plaintiff Crowley had the right to maintain the action without the joinder of Ellen Daly, brought in as party plaintiff by the order. The plaintiff Crowley is vested with the title in fee of the entire estate in suit, subject to a life interest of his mother, Ellen Daly, in an undivided half. Section 1500 of the Code was enacted since the decision in the case of Hasbrouck v. Bunce (supra), expressly according to the opinion of the compilers of the Code, “ to annul the law as settled ” in that and other like cases. See note under § 1500 of Code, Pocket Edition. See note under § 1500 of Code, Bliss’ Code. Nevertheless, it was highly proper that Ellen Daly, having such life interest, should be brought in as a party plaintiff, on the ground of public policy, in avoiding a multiplicity of suits, if no other ; but especially on the ground that “ a complete determination of the controversy ” might be had in this one action (§ 452, Code of Civ. Proc). In such behalf the court might, of its own motion, have properly made the order appealed from.
    V. The order appealed from is conceded as proper and demanded by the appellant herself. At the trial brought on before Chief Justice Sedgwick and a jury, counsel for the defendant insisted that Ellen Dalv should be made a party in the action, and that the trial could not go on unless she was made a party. The counsel for the defendant, by his course at the trial, manifestly conceded that the order he now appeals from was proper and necessary. He is now estopped from objecting to what he then insisted was essential.
   By the Court.—Truax, J.

It is not necessary for Hs to determine the interesting questions suggested by counsel for respondent. If Ellen Daly was not a necessary party,' plaintiff should not have made the motion that he did make. We think that in view of the fact that there have been two trials of this action and that defendant had paid one large bill of costs to plaintiff and because of the laches of plaintiff in making the motion, the motion should have been denied and plaintiff left to commence his action anew.

There is another and more important reason why the motion should have been denied. This is an action of ejectment. As before stated, the-case has been tried twice.. And the defendant has availed herself of the statutory right given by section 1525, and has paid the costs required by that section in order to obtain a new trial. This new trial should be of the same issues as those that were tried in the first action. One of the issues tried in the first action was whether as against the plaintiff in that action there had been adverse possession. Now, if the amendment sought for is allowed, a new issue will be presented in this action, viz : Whether the defendant can show adverse possession not only against the plaintiff, Cornelius J. Crowley, but against another person, Ellen Daly. The plaintiff, if he saw fit to do so, could have discontinued this action and could have begun another, in which new action he could have brought in all of the necessary parties.

The order appealed from is reversed, with costs, and the motion is denied with ten dollars costs.

Freedman, J., concurred.  