
    Grace E. Lewis and Others, Respondents, v. Charles De Kay Townsend and L. Bradford Prince, Individually and as Trustees under the Last Will and Testament of Letitia A. Poillon, Appellants, Impleaded with Meyer Goldberg and Others.
    First Department,
    May 21, 1909.
    Ejectment—failure of tenants to answer ^judgment against tenants on default improper where landlord asserts his title.
    Where a landlord and his tenants are made defendants in an action of ejectment, and the former has answered asserting his right to possession, the action cannot he severed and judgment for possession rendered against the tenants upon the ground that they have not answered. The possession of the tenants is that of their landlord, and such order would deprive the latter of his rights without a hearing.
    Appeal by the defendants, Charles De Kay Townsend and another, individually and as trustees, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of February, 1909, severing the action, giving plaintiffs leave to enter judgment against certain of the defendants, and directing the receiver herein to account and pay over to plaintiffs rents, etc., in his'hands.
    
      Calvin D. Van Name, for the appellants.
    
      C. W. Jewell, for the respondents.
   Scott, J.:

This is an action in ejectment, in which plaintiffs seek to obtain possession of certain real estate in the city of New York held by Charles De Kay Townsend and L. Bradford Prince, as trustees under the last will and testament of Letitia A. Poillon, deceased. The defendants, other than Townsend and Prince, are tenants holding under them, and -have not answered the complaint, leaving their landlords to dispute plaintiffs’ claims. The order now appealed from severs the action and awards plaintiffs final judgment for possession of the premises against the tenant defendants, and directs a receiver of the rents hereinbefore appointed to account and pay over all sums collected by him to the plaintiffs. We aré aware of no provision of .law or rule of practice authorizing such an order under the, circumstances. The question in controversy is whether the plaintiffs or the defendants Townsend and Prince are entitled to the possession of the premises.' The possession of the tenant defendants is the possession of the trustee defendants., The present order, .if carried out, would give plaintiffs all the relief they ask as well against the trustees as against the tenants, that is, possession of the real' estate and enjoyment of the rents. The trustees have answered and assert a right to be continued in possession. This claim they are entitled to litigate, and they cannot be practically deprived of this right by a short cut which takes thé property out of their hands without a hearing.

The order appealed from must be reversed', with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

■ Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.  