
    PURDY v. BENNETT et al., (two cases.)
    (Supreme Court, General Term, Fifth Department.
    April, 1893.)
    Ejectment—New Trial—Application of Assignee of Defendant.
    An occupant of land, originally claiming under the record owner, entered into an agreement with a third person who had brought ejectment against him, whereby judgment was rendered for plaintiff in ejectment, and the premises were leased to the occupant for live years. A mortgagee of the land, also claiming under the record owner, foreclosed his mortgage, and obtained a sheriff’s deed to the land. On refusal of the occupant to surrender possession, the mortgagee brought an action, wherein he obtained judgment for the possession of the premises, and then for the first time he learned of the prior ejectment suit, and of the judgment therein. Hcltl, that the mortgagee was an assignee of the occupant of the premises, within the meaning of Code Civil Proe. § 1526, which provides that in ejectment, where judgment was obtained by plaintiff otherwise than on the trial of an issue of fact, the court, on the application of “defendant, his heir, devisee, or assignee,” must make an order vacating the judgment and granting a new trial, if it is satisfied that justice will he thereby promoted. Howell v. Leavitt, 90 N. Y. 238, followed.
    Appeal from special term, Erie county.
    Two actions "by Augustus F. Purdy against Hezekiah C. Bennett for the possession of land. Judgment was rendered in plaintiff’s favor in both actions by agreement of parties. William M. Smith afterwards presented his petition praying to have their judgments opened, and that he be permitted to interpose a defense in each action, and be made a party defendant therein. From an order made in each case granting the prayers of the petitions, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and MACOMBER and HAIGHT, JJ.
    G. W. Harding, for appellant.
    John S. Rockwell, for respondent.
   MACOMBER, J.

The respondent, William M. Smith, presented his petition to the court under section 1526 of the Code of Civil Procedure, asking that he might be made a party defendant. This application was granted, and from the order entered thereon, this appeal is taken. The petition alleges that William M. Smith is the owner of certain premises described in the complaint, known as the “North Half of the Village Tract of the Caneadea Reservation, in the Town of Hnme, Allegany County.” His title was procured as follows: One Joseph M. Paul, who was then the owner in fee of the premises, executed, with his wife, a mortgage to the petitioner upon those premises, dated the 17th day of April, 1886, to secure the payment to the petitioner of the sum of $2,000; that default was made in the payment of such mortgage, and thereupon the same was foreclosed, which proceeding resulted in the conveyance of the lands by the sheriff of Allegany county to the petitioner, These allegations are not disputed by the appellant. After obtaining his deed, the petitioner found that Hezekiah C. Bennett, the defendant above mentioned, was in possession of the premises, and refused to surrender the same to the petitioner; whereupon an action was brought by the petitioner against him, which resulted in a judgment in favor of Mr. Smith on the 11th day of March, 1892, for the possession of these lands. Bennett’s possession and right of possession originally existed under Joseph M. Paul, to whose rights the petitioner had succeeded as above mentioned. Not until after the judgment was procured by the petitioner against Bennett was it that the petitioner learned that the plaintiff, Augustus F. Purdy, made claim to the premises. One of the above actions was brought on the 23d day of August, 1880, and the other March 9, 1886. On the 27th day of September, 1889, an agreement was entered into, between Purdy and Bennett, providing that Purdy should take judgment against Bennett for certain portions of this village tract, and that Bennett should have the privilege of leasing the same from Purdy for five years, which agreement resulted in the judgments of February 25, 1890, above mentioned. The respondent brings himself clearly within the provisions of section 1526 of the Code of Civil Procedure. This section provides that in an action of ejectment, wherein judgment was obtained by the plaintiff “otherwise than on the trial of an issue of fact,” the court, within five years after the judgment roll is filed, “upon the application of the defendant, his heir, devisee, or assignee, *■ * * must make an order vacating the judgment and granting a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established, but not otherwise.” The respondent is certainly the assignee of Hezekíah C. Bennett, within the meaning of this provision of the Code, and within the decision of Howell v. Leavitt, 90 N. T. 238. The only question, therefore, which was before the special term was whether the court should grant the prayer of the petitioner upon the terms stated in the order, or whether it should drive him to his affirmative action of ejectment against Purdy; and we are satisfied, equally with the special term, that justice will be promoted by opening these judgments and letting the petitioner defend the actions. The orders appealed from should be affirmed.

Order in each case appealed from affirmed, with one bill of $10 costs and disbursements of appeal. All concur.  