
    Wood, ex dem. L. Elmendorf, against E. W. Wood.
    ALBANY,
    August, 1812.
    Where the lessories^or “f the p'ajntifij in art ment, went, as possession,aná ““t by ^deset aside, and cihimmgtobe °añdfcon°LiaF fidavit of me-Fits StC. W&5 admitted as payment^01 cost3s &c.
    A MOTION was made that the judgment, default and writ of possession in this cause be set aside, for irregularity, &c. and that a writ of restitution issue, and that Robert R. Livingston be made defendant instead of the present defendant.
    The affidavit of Livingston stated, that he was proprietor of a tract of land, in the Hardenbergh patent, including the premises in question ; that Jeremiah Gale was placed on the land, as his general agent and superintendant, and had a lease for part. He also stated, that he and those under whom he claimed, had been in possession of the land for near 80 years, and that in 1790, or 1794, the tract was surveyed and run out into lots; that the lessor " claimed under the trustees of the town of Rochester, &c. that the suit was commenced and carried on as for a vacant possession; and that he (R. R. L.) had a good and substantial defence on the merits, in the cause, if he could be made defendant; and that he had supposed, from the information of his attorney, that he had been made, with the consent of the lessor, a defendant, until since last January term, when he was informed that the plaintiff had obtained a judgment, on which a writ of hah, fac. poss. had been issued, and the lessor put into possession of part of the land.
    It appeared by two other affidavits, that since the last Sullivan circuit, the lessor expressed a desire to have the matter brought to a settlement between Livingston and himself, and promised not to proceed in the suit without giving the attorney of Livingston notice, and that Livingston might be made defendant, so as to have his title tried at the next circuit. The lessor also wrote a letter to Livingston, dated the 19th of August, 1811, informing him that he had commenced this action, and that he was willing to have the controversy amicably adjusted, and would meet him at anytime or place that he would appoint for that purpose.
    The affidavit of the lessor stated, that in order to obtain a notorious and evident possession of the premises, in connection with his constructive possession, under his deed from the trustees of Rochester, and to bring the claim of Livingston to a decision, he entered, in August last, on the premises, then vacant, and executed a lease to William Wood, of the premises, and delivered him the actual possession, who was, afterwards, on the same day, dispossessed by E. W. Wood, upon whom, while actually in possession, a declaration m ejectment was served m the suit in which William Wood was plaintiff, and the said E. W. Wood the casual ejector; that on filing an affidavit of the lease, the ouster, and a Service of the declaration, the rule to plead was entered, and the service of the new declaration and rule to plead, was admitted by E. W. Wood, the defendant, on the 10th of August last, on which admission, endorsed on the copy of the declaration, &c. and filing the same, the default of the casual ejector was, afterwards, entered, and, in October term last, a rule for judgment on the default was entered, which was perfected on the 24th of October. The rule for pleading expired on the 30th of August, and the last Sullivan circuit commenced on the 16th of September. Since the judgment, the lessor told the agent of Livingston, that he was willing to put the controversy at issue immediately, so that Livingston should be the lessor, and he the defendant, or to leave the matter to referees ; but he denied that he had ever promised to stay the proceedings in this cause, or to relinquish the judgment, unless on terms, which were not acceded to by the attorney or agent of Livingston.
    
   Per Curiam.

The premises were vacant, so that there was no person in possession on whom a declaration in ejectment could be served, and the proceeding, in such case, was regular. Rut agreeably to our former decisions, in cases of ejectment, the default, judgment, and execution must be set aside, and R. R. Livingston be admitted as defendant, on payment of costs, and stipulating to admit he was in possession at the commencement of the suit.

Rule granted. 
      
       See Saltonstall v. White, (1 Johns. Cas. 221.) Jackson v. Stiles, (1 Caines’ Rep. 505.) Jackson v. Stiles, (4 Johns. Rep. 489.) Davenport v. Ferris, (6 Johns. Rep. 181.) 1 Caines’ Rep. 155.
     