
    Falding W. Skinner, App’lt, v. Frederick Odenbach, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 7, 1894.)
    
    Ejectment—Judgment.
    Where a judgment in ejectment awards the plaintiff an undivided interterest, an execution issued thereon, giving him the entire possession, will be set aside.
    Appeal from an order setting aside an execution issued on a judgment in favor of plaintiff.
    
      J. Van Voorhis, for app’lt; -E. Harris, for resp’t.
   Dwight, P. J.

The interest alleged by the plaintiff was an undivided two-fifths of the premises described in the complaint. The report of the referee fpund him entitled to the undivided two-fifths, and judgment entered thereupon awarded to him the possession of the same undivided interest; but the execution issued thereon commanded the sheriff to put him in possession of the whole premises, and the proofs on the part of the appellant tend to show that the writ was executed accordingly. The execution was plainly irregular in this respect. The Code of Civil Procedure provides for an action by one or more joint tenants “ to recover his or their undivided shares.” Code Civ. Proc., § 1500. It also provides for the enforcement of judgment in ejectment by execution (Id., § 1240, subd._ 2), but it leaves to' the Revised Statutes the more definite provision for the form and contents of the verdict, the judgment, and the writ (2 Rev. St., p. 307, §§ 30-34). Thus, by § 30, subd. 6, it is provided that if the verdict be for the undivided sitare or interest, it shall specify such share or interest.; by § 33, that, if the plaintiff prevail, the judgment shall be that he recover possession according to the verdict; and by § 34, that the writ of possession shall describe the premises recovered with the like certainty as above provided, and shall command the sheriff that he deliver to the plaintiff possession of the premises so recovered. Moreover, the rule seems to have been the same at common law from a very early day. Thus-in 3 W-ils. at page 49, we find the case of Roe v. Dawson, reported in full as follows: “ The plaintiff in ejectment, as tenant in common, recovered possession of five-eighths of a cottage, with the appurtenances, and a writ of possession was executed by the sheriff, who turned the tenant out of possession of the whole, and locked up the door, as appeared by the affidavit. Curia: This is wrong. The writ ought to have pursued the verdict. Let there be a rule upon the sheriff and the lessor of the plaintiff to restore the tenant to the possession of three-eighths of the premises, otherwise he would be forced to bring another ejectment for the same.”

So in Jackson v. Stiles, 5 Cow. 418, which was a case of ejectment for undivided shares, the court said: “But the plaintiff has taken possession beyond his right. The execution of the writ of possession was unqualified, though, as appears by the papers, the right to three-sixths of the premises in question was extinguished. Let the defendant be restored to so much. ”

So, too, in Jackson v. Hasbrouck, 5 Johns. 366, the court said that where the plaintiff had taken possession of more land than was recovered by the verdict, the court, on motion, will order a restitution. This was a case of several title, but it shows, equally with the rest, that the court will, on motion in the action, order restitution when the execution exceeds the verdict and the judgment.

There is another question arising upon the proofs in this case under which the defendant claims to set aside the execution altogether, and to be restored to possession of the entire premises; but that question relates to the effect of an alleged oral stipulation, in respect to which the proofs are directly in conflict, and to which, for that reason, we are not at liberty to give effect.

The order appealed from should be modified so as to confine its operation to the restitution to the defendant of the possession of the undivided three-fifths part of the premises, and, as so modified, affirmed, without costs of this appeal to either party.

All concur. So ordered.  