Newkirk v. Steen — 2 How. Pr. 274

Majority

p. 274

Elizabeth Newkirk agt. Jacob Steen.

Headnote

Where plamtiffbrought ejectment for a dower right against the landlord, and was nonsuited on the trial, and judgment for costs entered, and subsequently brought the same action for the same premises against the tenant, the costs not having been paid in the suit against the landlord, and on motion by the landlord he was permitted to come in and defend the suit brought against the tenant, separate and atone, and if plaintiff obtained judgment against the tenant, proceedings thereon were to be stayed until the determination of the suit between the plaintiff and the landlord. And all proceedings on the part of the plaintiff against the landlord were ordered to be stayed until the costs of the former suit were paid; the landlord to admit on the trial that he was in possession of the premises at the time of the commencement of the suit against the tenant.

September Term, 1846.

Motion on the part of Garret 0. Newkirk for leave to come in and defend an action of ejectment in the place of defendant, Steen.

Plaintiff brought ejectment for a dower right against defendant for one-third of 150 acres of land. Defendant was tenant to Garret C. Newkirk, and *was in possession of all the premises in question except about twenty acres, which was in possession of Garret 0. New-kirk.

Plaintiff had previously brought ejectment against Garret 0. Newkirk, for her dower in the same premises; and, failing upon the trial to make out a right to recover, was nonsuited, and a judgment had been entered against her thereon. She had not paid the costs of that suit.

Garret C. Newkirk, the landlord, moved to be allowed to come in and defend this suit, Steen, the tenant, refusing to defend; also that all proceedings on the part of the plaintiff be stayed until the costs of the first suit were paid.

Garret 0. Newkirk claimed the premises in question in fee.

D. Weight, counsel for G. G. Newkirk.

H. & F. Fish, attorneys for G. 0. Newkirk.

D. McMabtih, plaintiff's counsel.

G. Yost, plaintiff’s attorney.

Ordered, that the landlord be allowed to come in and defend separately and alone. That if plaintiff obtained judgment against Steen, proceedings thereon to be stayed, until the determination of the suit between plaintiff and Garret C. Newkirk, and that all proceedings on the part of the plaintiff against Garret C. Newkirk be stayed until the costs of the former suit were paid, and that on the trial of the cause, Garret C. Newkirk admit that he was in possession of the premises at the time this suit was commenced.