Read v. Simon

This action was brought by the plaintiff, John J. P. Bead, and his sister Elizabeth A. S. Bead, the latter now deceased, to recover possession of the land described in the complaint, under allegations showing that such plaintiffs were tenants in common thereof, and that the defendant was wrongfully in possession thereof, and refused to surrender the same to them.

After the case was begun, Elizabeth A. S. Bead intermarried, with one George W. Rockwell, and at her death left a last will, by the terms of which all' of her estate, both real and personal, was devised and bequeathed to her husband. She died without issue. A contest arose respecting the validity of the will, and a trial of the issues therein has been twice had before a jury, resulting in each instance in a disagreement. It is obvious, therefore, that if this will is ultimately sustained, the plaintiff can recover but an undivided half of the lands, while if it is overthrown he, as the only heir of his sister, would inherit her share, and thus be entitled to a recovery of the whole of the premises.

As is shown by the learned counsel for the respondent in his brief, prior to the case of Hasbrouck v. Bunce, 62 N. Y., 475 , no doubt could be entertained but that a case like this could have proceeded as between the surviving plaintiff and the defendant, without any order of severance. The revisers, in preparing § 1500 of the Code of Civil Procedure, which permits one or more-part owners to maintain ejectment, show that such section was introduced for the purpose of annulling the decision above cited, so-that the law would be deemed restored as it previously was supposed to exist. The codiffers, however, inserted §§ 1522 and 1523, and those sections seem to confuse the rules of practice, and make the application of the several provisions of the Code doubtful and uncertain; but, on the whole, we think the learned justice-at special term has easily surmounted the difficulty presented by these several sections of the Code, by inserting a provision in the order allowing the plaintiff to amend, or make a supplemental complaint, if he sees fit to do so, as a part of the order of severance. In this way alone, perhaps, the parties may safely proceed to a trial of the case.

Therefore it follows that the order appealed from should be-affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements, but with leave to the plaintiff to serve a supplemental complaint within thirty days, on payment of the costs.

Dwight, P. J., concurs; Lewis, "J., not sitting.