
    Mary A. Denike, Appellant, v. Abraham Denike and Mary E. Denike, Respondents.
    Judgment reversed and new trial granted, costs to abide the event.—Appeal from a judgment in favor of the defendants dismissing the complaint on the merits.
   Cullen, J.:

The action is for the partition of

real property. The complaint alleged that the plaintiff Was seized in fee of two undivided thirds of the premises, and the defendant Abraham Denike of the other third. The answer denied that the plaintiff was the •owner of two-thirds of the real estate described in the complaint: On the trial the plaintiff proved a record title in the parties to the shares alleged in the complaint. The -defendant introduced in evidence a finding nn an action brought by Abraham Denike ¿against the plaintiff and one Elizabeth A. Burnham, wherein the court found that «Charles W. Denike, through whom the plaintiff traces title," received his conveyance of ¡the premises in trust to convey one-third interest therein to said Abraham Denike, and .•another third interest to Elizabeth A. Burn-ham. The only parts of the judgment roll in the prior action which appear in the. present record are the single finding mentioned and the final judgment in the action. "The judgment declared that Abraham Denike was entitled to an undivided third 'interest in the premises, and directed Mary A. Denike and Charles W. Denike to convey rsuch interest to him. It is entirely silent as to any interest of Elizabeth A. Burnham in the premises. After the admission in evidence -of the judgment roll in the first action the .«learned trial judge held that no marketable -title could be given on a sale under a decree .in this action unless Elizabeth A. Burnham was made a party thereto. He'directed that the plaintiff have ten days within which to .apply to the Special Term for leave to amend the summons and complaint by making "Elizabeth A. Burnham a party defendant, .and that in default of such motion within-•the time limited or of compliance with the* ¡terms, if any, imposed by the Special Term, the complaint should be dismissed on the mierifcs, with costs. Plaintiff did not move tor leave to amend in accordance with the •direction given by the trial court, and judgment was entered dismissing the complaint -on the merits. From the meagre extracts •jfrom the judgment roll in the prior action ¡between the parties we do not see that.it was •proved that Elizabeth A. Burnham had any •interest in the .premises. It is not the findáng of the court or the verdict of the jury a’endered in an action that concludes the parties in subsequent litigation, but the judgment entered thereon. The answer of Elizabeth A. Burnham is not before us. Unless she demanded some relief against her co-defendant (the present plaintiff;, the decree in the earlier action .could have no effect on the rights of either party against the other. Be this as it may, and assuming that it appeared that the court could not render a final judgment without the presence of Elizabeth A. Burnham, the course adopted was erroneous. The defendant did not plead a defect of parties, and, hence, was precluded from. Raising the objection that Elizabeth A. Burnham was a necessary party. Still, if in fact that lady was a necessary party, the proper course was for the court to have directed her to be brought in the action. (Code Civ. Proc. § 452.) For this purpose the court should, have made an order at the time amending the summons and complaint as it might deem requisite, and should not have remitted the plaintiff to apply for the-amendment at Special Term as a matter of favor, for the defendant could not be heard to complain of the absence of Mrs. Burnham. Further, the complaint should not have been dismissed on the merits, but without pre judice to a new action. (Sherman v. Parish, 53 N. Y. 483.) The judgment appealed from should be reversed and a new trial granted, with costs to abide the final award of costs. All concurred  