
    New York Common Pleas. General Term
    
    March, 1879.
    WILHEMINA CROFT, Administratrix of MARGARET FISHER, against RACHAEL KING, Executrix, &c.
    Summary proceedings.—Parties.—Warrant.—The statute contemplates the joinder as parties, of the tenant and of all who derive title through him.
    The wife of the tenant, his children, his servants, his boarders and guests may all be removed under the warrant of dispossession, though not made parties to the proceeding. These are the only persons the officer may lawfully remove without being named in the process.. If he removes a tenant not named in the warrant, he is liable for damages.
   Van Hoesen, J.

If the warrant had run against Becker only, the case of Welsh v. Cochran (68 N. Y. 181), would have been directly in point, but it required the removal of “all persons” from the premises, and that King, the landlord, should be put in full possession. The warrant was in due form, and was not broader than the statute permits. Tenants, their assigns, their under-tenants, and their legal representatives, ought properly to be made parties to summary proceedings; and there is a provision of the statute under which any person may become a party or obtain a hearing, by showing that he has possession or that he claims possession of the premises, and by denying, by affidavit, any of the averments of the landlord1 á affidavit. The statute contemplates the joinder of the tenant, and of all who derive title through him, in the proceedings instituted by the landlord. But there are other persons who may be lawfully on the premises, and may lawfully be removed without having their day in court, or any opportunity to object to the proceedings ; the wife, the children, the servants, the boarders, the guests of the tenant may all be removed under the warrant by virtue of which he is dispossessed, though they have not been made parties. These are those whom the statute refers to where it provides9 that the warrant shall' direct the removal of “all persons.” When a marshal receives a warrant, he knows that there may be persons whom it may be-necessary to remove, in order to give the landlord possession, whose names do not appear in the papers. He must dispossess them, and the warrant is his authority for so doing. In this case, he did the very thing he was directed to, and- he did not dispossess' any one whom his warrant did not run against. The marshal was not liable, therefore, for executing the warrant; it was regular in form ; the magistrate had jurisdiction of the subject-matter; and there was nothing to show that he had not jurisdiction of the persons whose property was to be removed from the premises, and who were themselves to be evicted. It was not for the marshal to inquire whether the plaintiff was an under-tenant, who ought to have been made a party, or a boarder, whom it was not necessary to make a party. His duty was simply to put her out, and to put King in possession. This he did.

Now it appears that she was an under-tenant of Becker; she ought, therefore, to have been joined in the proceedings (Sims v. Humphrey, 4 Denio, 185; Starkweather v. Seeley, 45 Barb. 164).

It was a trespass to dispossess her without giving her an opportunity to make her defense. She might have paid the rent, to protect her possession, or she might have taken á valid objection to some of the landlord’ s proceedings. At any rate the statute gave her a right to a hearing, and the landlord ought to answer in damages for the wrong. The plaintiff is answerable if the court proceeds at his application without jurisdiction, whether of the subject matter or of the person (Savacool v. Boughton, 5 Wend. 170; Starkweather v. Seeley, cited above).

It was said that the landlord knew nothing of these proceedings ; but he instituted them, sued out the warrant, and, by his agent, caused it to be executed by the marshal. It was not necessary that he himself should have had the matter in his personal charge. He knew that the warrant was out, and said the marshal had done his duty in executing it.

King himself admitted that he directed the institution of the proceedings. It is the law that a party to the record is generally responsible for whatever is done in his name (Brown v. Feeter, 7 Wend. 301).

And where, as in this case, a party orders proceedings to be taken, he ought not to be excused from liability, because he does not know all the details rendered necessary by the practice of the courts.

The counsel for the appellant insisted that, after the letting by King to the plaintiff, it became the duty of King to notify the marshal of the tenancy, and to countermand the warrant against the plaintiff. Sheibel v. Fairbrain (1 Bos. & Pull. 388) and Brown v. Feeter (7 Wend. 301) are authorities holding the other way. I think the judgment of the marine court should be reversed, and a new trial ordered, with costs to the plaintiff, to abide the event.

Daly, Ch. J., concurred.

See also McAdam’s Landlord and Tenant, 296 ; Colt v. Eves, 12 Conn. 259, 261.  