
    Vito Caleo and Others, Appellants, v. Lena Goldstein, Respondent, Impleaded with Sarah E. Patterson and Others, Defendants.
    Second Department,
    October 12, 1909.
    Equity — pleading — real property — determination of boundary line — misjoinder.
    Equity permits all interested in the subject-matter of the suit to be joined therein where the matter has become so involved that the rights of the parties are in doubt and the court can make its judgment so full as to quiet the controversy in all respects.
    The plaintiff, a landowner, sued adjoining owners on the north and south. The complaint alleged that all derived title from a common grantor; that plaintiff’s lot was fifty feet in width; that the space between the buildings of the defendants was less than fifty feet; that one or both encroached upon his land; that he had caused surveys to be made by several surveyors, who all agreed as to the encroachment but disagreed as to which of the buildings encroached, and that the rights of the parties are in doubt, and asked that the boundary lines be fixed, and that an injunction issue restraining the encroachment when determined.
    
      Held, that the complaint stated a cause of action in equity, and that the alleged misjoinder of actions, if any, was not substantial and did not bar the action.
    Miller, J., dissented.
    Appeal by the plaintiffs, Vito Oaleo and others, from an interlocutory judgment of the Supreme Court in favor of the defendant Lena Goldstein, entered in the office of the clerk of the county of Kings on the 8tli day of January, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the said defendant’s demurrer to the amended complaint upon the grounds that it does not state facts sufficient to constitute a cause of action ; that there is a misjoinder of causes of action in that one against the respondent is united with one against the defendant Fleisher, and that the interests of the defendants named are entirely distinct.
    The action is in equity and is brought to determine and fix the boundary line between the real property of the parties and to compel the removal of such buildings by the defendant or defendants whose buildings may be found to encroach upon the plaintiffs’ land. The plaintiffs allege ownership of a parcel of land on the west side of Hocica way avenue in the borough of Brooklyn, fifty feet in width front and rear and one hundred feet deep ; that the defendant Fleisher owns and is in possession of an adjoining parcel of laud on the north, twenty-five by one hundred feet, on which is erected a four-story brick building, and that the defendant Goldstein owns and is in possession of an adjoining parcel of land on the south twenty-five by one hundred feet, on which is erected a three-story frame building and frame shed in the rear thereof; that all of the parties derived their title from the same grantor ; that the space or distance in width of the plaintiffs’ land between the buildings of the defendants is less than fifty feet, and that such buildings, one or both, encroach on the land of the plaintiffs to the extent of about fifteen inches and that they are deprived thereby of the possession and use of their land to that extent; that the plaintiffs have caused several surveys to be made by different surveyors who agree that an encroachment exists to the extent alleged, but disagree as to which of defendants’ buildings so encroach, and that plaintiffs cannot determine that fact; “that owing to such complications and entanglements the rights nf the parties are in doubt and it is difficult to determine who is liable, and who is not, except upon a full hearing in which all the persons in any way affected or interested are before the Court.” The prayer for relief is as follows: “Wherefore, plaintiffs pray judgment of this Court determining and fixing the boundary lines between the properties of the parties hereto, and that the defendants or such of them as shall be found to encroach upon plaintiffs’ land be enjoined and restrained therefrom, and for a mandatory injunction for the removal of said encroachment, and for the sum of Fifteen hundred ($1500) dollars damages, together with the costs of this action.”
    
      Cyrus V. Washburn [George W. Sickels with him on the brief], for the appellants.
    
      Forrest S. Chilton, for the respondent.
   Rich, J.:

The learned justice at Special Term has held that if the cause of action stated in the complaint can be maintained in equity the alleged defect of misjoinder of causes of action is not substantial and presents no bar to maintaining the action. (61 Misc. Rep. 582.) I concur in this view, but he has reached the conclusion that the complaint did not state a cause of action for equitable relief. In this I think he was in error. If it should appear that a building has been erected upon the land of the plaintiffs, equitable interference to compel its removal by the person who wrongfully erected or maintains it is proper. Such removal necessarily imperils the remainder of the building, and the trespasser, not the injured party, ought to assume that risk. The primary object of the action is to compel the removal of the encroaching buildings, which involves, as an incident, the determination of the boundary lines of the respective parties. Equitable jurisdiction, being properly invoked upon the first branch of the case, will be retained and continued to settle all incidental issues, and the question of the boundaries is a proper incidental issue for equity jurisdiction. The complaint is not to be condemned because it does not point out the actual trespasser. That is made impossible because of the conflict of boundaries created by the defendants themselves, each of whom adopted a line as the proper division line between their land and that of the plaintiffs, and built accordingly. One or both are in error, the buildings of one or both are alleged to encroach upon the land of the plaintiffs, and the plaintiffs are entitled to relief against one or both of the defendants, who are interested and may possibly be affected by the determination. If it should be found that the buildings of both defendants encroach, the plaintiffs are entitled under the pleadings to relief against both. Equity permits all persons related to the subject-matter, who have a common interest in one or more branches of it, to be joined in an action when the subject-matter has become so involved that the rights of the parties are in doubt and it is difficult to determine who is and who is not liable, except upon a full hearing before the court, which can adjudicate the questions and settle the rights of all of the parties, and make its judgment, so full and comprehensive as to quiet the controversy in all of its aspects, protect those compelled to obey its decrees and prevent further litigation. (Board of Supervisors v. Deyoe, 77 N. Y. 219; Hilton Bridge Co. v. N. Y. C. & H. R. R. R. Co., 84 Hun, 225; Kellogg v. Siple, 11 App. Div. 458; Hall v. Gilman, No. 1, 77 id. 458; New York & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592; Gavazzi v. Dryfoos, 47 Misc. Rep. 15.) The complaint states a good cause of action in equity, the interlocutory judgment must be reversed, with costs, the demurrer overruled, with'costs, with the right to the respondent to answer within twenty days.

Hirschberg, P. J., Jenks and Gaynor, JJ., concurred; Miller, J., dissented.

Interlocutory judgment re versed, with costs, and demurrer overruled, with costs, with the right to the respondent to answer within twenty days.  