p. 114Cornelius George Crowley, Resp’t, v. Mary Murphy, App’lt.(New York Superior Court, General TermHeadnote
.Ejectment — Pasties—Amendment.In an action of ejectment commenced in 1888, one of the defenses was adverse possession. There were two trials and defendant has availed hersqM of her right to a new trial under § 1525 of the Code and paid the necessary costs. Held, that plaintiff should not be allowed to amend by bringing in another party plaintiff who was claimed to be interested in the premises, both on the r round of loches and because defendant is entitled to a trial of the same issues.
Appeal from an order made at special term allowing the plaintiff to amend the summons and complaint in this action by adding the name of one Ellen Daly as party plaintiff, and by adding to the complaint such allegations as might be appropriate to set forth her interests in the premises mentioned in the complaint.
The action was commenced in the year 1888, in the name of Cornelius George Crowley, grantor, and Joshua C. Sanders, grantee against Mary Murphy and others, under § 1501 of the Code -of Civ. Proc., to recover the possession of certain premises situate within the city and county of Mew York
David B. Odgen, for app’lt; Townsend & Mahlon, for resp’t.
It is not necessary for us to determine the interesting questions suggested by counsel for respondent. If Ellen Daly was not a necessary party, plaintiff should not have made the motion that he did make. We think that in view of the fact that
p. 115there have been two trials of this action and that defendant had paid one large bill of costs to plaintiff and because of the
loches of plaintiff in making the motion, the motion should have been denied and plaintiff left to commence his action anew.
There is another and more important reason why the motion should have been denied. This is an action of ejectment. As before stated, the case has been tried twice. And the defendant has availed herself of the statutory right given by § 1525, and, has paid the costs required by that section in order to obtain a new trial. This new trial should be of the same issues as those that were tried in the first action. One of the issues tried in the first action was whether as against the plaintiff in that action there had been adverse possession. Mow, if the amendment sought for is allowed, a new issue will be presented in this action, viz.: Whether the defendant can show adverse possession not only against the plaintiff,. Cornelius Gr. Crowley, but against another person, Ellen Daly. The plaintiff, if he saw fit to do so, could have discontinued this action, and could have begun another, in which new action he could have brought in all of the. necessary parties.
The order appealed from is reversed, with costs, and the motion is denied, with ten dollars costs.
Freedman, J., concurs.