
    Pearce and others against Ferris’ Executors.
    At the expiration of a lease of land, a building erected thereon by the lessee was wrongfully continued upon the lot by those claiming under him. Ejectment being brought for the lot alone, by metes and bounds, against parties occupying separately the different stories of the building, it was held that the action would lie against all the defendants, as being joint trespassers on the land in using it to uphold the building, and that the plaintiff was not bound to elect against which one she would proceed, as provided by 2 B. S., 307, $ 30.
    • This was an action of ejectment brought in the superior court of the city of New-York by Jane Ann Ferris, in September, 1844, to recover possession of lot No. 267 in the Bowery. The plaintiff claimed the premises in fee, and there was no dispute about her title to the fee at the time of of the commencement of the action. The defendants, one of whom occupied the basement, another the second stoiy, and the third another part of the building, all using the back buildings, back-yard and passage-way in common, joined in the plea of the general issue. The facts upon which they claimed a right to the possession were briefly as follows:
    John Ferris died in September, 1813, leaving a will whereby he devised the bulk of his estate, including the premises in question, to his executors, of whom his widow, the plaintiff in this suit, was one, in trust, with power to dispose of it, and to divide it between his wife and his infant son Charles John. The will directed that the property devised to the son should remain in the hands of his executors until his son should become of age.'
    On the 5th of June, 1823, all the executors joined in a lease of the premises in question to Nathaniel H. Smith, for the term of twenty-one years from the 10th of December, ] 822, which lease contained a covenant on the part of the lessee “that on the last day of the term, or other sooner determination of the estate granted by the lease, he would peaceably and quietly leave, surrender and yield up unto said lessors, their heirs and assigns, all and singular the demised premises with the appurtenances, together with the building and improvements thereon to be e?-ected.”
    
    On the day of the execution of the lease, Mrs. Jane Ann Ferris gave a bond to the lessee, Smith, in the penalty of $2500, and annexed it to the lease; by the recitals and conditions of which bond, she, on behalf of herself and her son Charles John, covenanted that in case Smith, his executors, administrators or assigns, should perform and fullfil the conditions and covenants contained in the lease on his or their part, that the buildings which might be erected by the said Smith, his executors, administrators or assigns, on the demised premises, and also the fair value of the ground rent of the demised premises, should be appraised or valued by three indifferent persons to be chosen in the manner mentioned ; and if the buildings should be valued at $2000 or upwards, that the said Jane Ann Ferris, Charles John Ferris, or whoever should be seised in fee of the demised premises, should either renew the lease of the premises for the further term of twenty-one years, at such rate as might be determined by the appraisers, or else pay to Smith, his executors, administrators or assigns, the appraised value of the buildings within sixty days. But if the appraised value of the buildings should be less than $2000, that it should be optional with the said Jane Ann Ferris, Charles John Ferris, or whoever should be seised in fee simple of the demised premises, either to renew the lease of the premises for such term of time, and upon such conditions as should be mutually agreed upon, or else that the said Jane Ann Ferris, Charles John Ferris, or whoever should be seised in fee of the demised premises, should suffer the said Nathaniel H. Smith, his executors, administrators or assigns, to remove and take away from off the premises the buildings and materials composing the same, provided they should do so in twenty days after notice of such election.
    On the 16th day of March, 1829, in a partition and division of some of the real estate of John Ferris, deceased, between .the widow and son, by the trustees, the lot in question was conveyed to Charles John Ferris; and on the 13th day of December, 1830, Charles John Ferris conveyed the premises to his mother, the plaintiff, who thereupon became the owner thereof, and continued to own the same at the commencement of this action. The lease to Nathaniel H. Smith, and the bond of the same date made by Mrs. Ferris, had by various assignments passed to Henry Abell, and were held and owned by him on the 18th day of February, 1842. On the last mentioned day, Mrs. Ferris gave Henry Abell a covenant, by which she agreed with him not to avail herself of the covenants in her bond, as to the value of the improvements, but to pay for the same on the valuation thereof, in the manner mentioned, even if the same did not amount to the sum of $2000, in case she did not renew the lease. On the 1st of February, 1843, Mrs. Ferris and Henry Abell agreed in writing, that Jacob Taylor and Simeon Kingsley should estimate the amount of rent per annum, for a lease of the lot in question, for the term of twenty-one years; and in case they could not agree, they should choose a third person, whose award should be final in the premises ; and Taylor and Kingsley thereupon agreed that the yearly rent of the lot should be $190. On or about the 13th day of November, 1843, Mrs. Ferris caused to be prepared and offered to Henry Abell, a lease of the premises in question similar to the one originally given to Nathaniel H. Smith, by the trustees of John Ferris, deceased, except as to the amount of rent, which was $190 a year. This lease Abell declined to accept, because it contained a covenant requiring the tenant to pay taxes and assessments.
    On the 4th of June, 1844, the plaintiff, Mrs. Ferris, caused notices to be served on Henry Abell and on the defendants, requiring them to surrender the possession of the premises to her, and to remove from the same, in one month after the service of such notice. On the 29th day of July, 1844, Henry Abell assigned.the original lease of June 5th, 1823, Mrs. Ferris’ bond of the same date, her covenant dated the 18th of February, 1842, the agreement between Mrs. Ferris and himself, respecting the appraisal of the value of the rent, made February 1st, 1843, and all his interest in the demised premises, to Harriet Augusta Evans. The defendants held under separate leases from Miss Evans, given in 1845, and it was claimed for them that some or all of these instruments and transactions operated as a renewal of the original lease, or as a new lease, from Mrs. Ferris, or at least to such a permission to continue the possession of the premises as created a tenancy at will, which was in effect a tenancy from year to year.
    
      At the close of the proof, the above facts having been shown', the defendants’ counsel requested that the plaintiff should elect against which of the defendants she would take a verdict, which she declined doing, and the presiding judge charged the jury, that the plaintiff was entitled to recover against all the defendants, against whom a verdict was given accordingly. The judgment of the superior court upon the verdict was sustained, on error, by the supreme court, and' the plaintiffs in error (defendants in the original suit) appealed to this court. The original plaintiff, Mrs. Ferris, having died pending the action, it was continued in the name of her executors.
    
      David Dudley Field for the appellants.
    
      Marshall S. Bidwell for the respondent.
   Mullett, J.,

(after discussing the question whether under all the circumstances the plaintiff showed a clear and uncontradicted right to the possession of the premises, and arriving' at an affirmative conclusion.)

The remaining question is, whether the plaintiff had a right to maintain a joint action against all the defendants. They each occupied separate parts of the house, under their respective leases from Miss Evans, and all used the outbuildings, back-yard, and the passage in common. As to Miss Evans and the house, they were not joint tenants, and did not occupy jointly ; as to the plaintiff and her land, they were all trespassers. The plaintiff brought her action to recover the possession of the land, by metes and bounds, which she claimed in fee. She makes no claim to the house. The house may belong to the land or not, according to the agreement of the parties, which is a question not involved in this suit, nor settled by it. The lease from the trustees of John Ferris to Smith having expired, and being in no way renewed or continued, and no subsequent arrangement having been made as to the house, it was wrongfully continued on the land, and those who occupied it then, were trespassers on the lot. They all used the land in common to sustain and uphold the house, and for other uses necessary for the enjoyment of the house. The house was sustained and upheld, as well for those who occupied the upper stories as those who occupied the basement. To this effect are the cases of Winton v. Cornish (5 Ohio Rep., 477); Kerr v. The Merchants' Exchange Company (3 Ed. Rep., 315), and Starkwell v. Huston (11 Met. Rep., 485). ■ In the case of the land, all those who, under the circumstances, occupied the house, were joint trespassers as against the plaintiff, and the action will lie against them all; and therefore the judgment appealed from ought to be affirmed.

Foot, J., read an opinion, arriving at the same conclusion.

Paige, Gardiner and McCoun, Js., concurred.

Ruggles, Oh. J., was for reversal.

Judgment affirmed.  