
    Frederick Hall, App’lt, v. Adeline Campbell et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 8, 1894.)
    
    Parties — New — Defendants.
    A party, who first commences an action oí partition, and, by a mistake not attributable to any want of care or negligence on liis part, omits a necessary party defendant, should be permitted to amend by bringing in such party.
    Appeal from an order denying plaintiff’s application for leave to bring in a new party defendant
    
      Stephens & Delaney (Peter A. Stephens, of counsel), for app’lt; Stedman, Thompson & Andrews (George W. Stedman, of counsel), for resp’t.
   Putnam, J.

This action was commenced on the 14th day of July, 1893, for the partition of certain real estate described in the complaint, of which one Ozias Hall died seized. The plaintiff, one of the heirs of Ozias, made all the other heirs of said deceased parties defendant, they and said plaintiff appearing to be the only persons who had any interest in the land sought to be partitioned. Plaintiff in this complaint alleged that Willis Hall and Sharon Hall, two of the defendants, were each seized of an undivided ninth part of the premises in question. In fact, prior to the commencement of the action, Willis had conveyed his interest therein to Sharon, so that Willis was an unnecessary party, and the interest of Sharon was two-ninths, instead of one-ninth, as alleged in the complaint. The deed from Willis to Sharon was not put on record until after the commencement of the action, and its existence was unknown to plaintiff. The complaint also alleged that one George Hall, a son of said Ozias, died nearly three years before this action was ^commenced, intestate, leaving five children, who were made parties. In fact, however, said George left a will, which was admitted to probate on August 3, 1893, after the commencement of the action. In the will he bequeathed his interest in the real estate in question to his widow, Ida Hal], who was not a party, and who at once commenced an action to partition said land, making the proper parties defendants. Plaintiff did not know of the existence of said will when he served his complaint. He moved to be allowed to serve an amended and supplemental summons and complaint, in "which the names of the said heirs of George Hall and the name of said Willis Hall shall be omitted as defendants, and the name of Ida Hall inserted in the title thereof, and appropriate amendments made to the complaint, showing the interest of Ida and said Sharon Hall in said premises. The motion was denied, and the plaintiff appeals.

It is impossible to find any fáult with the procedure oi the plaintiff. He made all the parties defendants who, when he commenced the action, appeared to have any interest in the promises. The mistake made was not due-to any laches or neglect on" his part. It arose from the fact that the deed from Willis to Sharon Hall had not been placed on record, and that the will of George Hall had not been admitted to probate, although nearly three years had elapsed since his death. The mistake of plaintiff was unavoidable. He appears to have commenced his potion in good faith, and to have been regular in his practice, and having, without fault on his part, omitted to make Ida Hall a party defendant, I think it would have been “in furtherance of justice” to have granted his motion. Under the provisions of §§ 723 and 452, Code of Civil Procedure, he was entitled to the relief asked for.

The fact that Ida Hall had also commenced an action to procure the partition or sale of the same premises need not be now considered. The plaintiff’s action was commenced, and, under the circumstances, he, having by a mistake not attributable to any want of care or negligence on his part omitted a necessary party defendant, should have, under the provisions of the above cited sections of the Code of Civil Procedure, the amendment he asks for. When tire amendment is made, the court can properly determine whether or not the two actions shall further proceed, and, if not, which action shall be stayed.

It was suggested by respondents that the parties are unable to defray the expenses of two partition actions. This expense could have been avoided had Ida Hall made an application, under the provisions of § 452, supra, to be made a party defendant in the-first action. But, doubtless, the court, on a proper application, and when all the parties interested are before it, will,, make an-order staying the further prosecution of one of the actions. Kimball v. Mapes, 19 Wkly. Dig. 481; 98 N. Y 629 ; Burlingame v. Parce 12 Hun, 149; McCarthy v. Peake, 18 How. Pr. 139; Dolbeer v. Stout, 46 St. Rep. 858 ; 19 N. Y. Supp. 820; N. Y., L. R. & W. Railroad Co. v. Robinson, 15 St. Rep. 237. I think the order should be reversed, with costs and disbursements, and motion granted, without costs in the court below.

Mayham, P. J., concurs ; Herrtck, J., not acting. '  