Hennessey v. . Paulsen

Gray, J. This action was for ejectment on a tax lease and the complaint is, in our judgment, sufficient. The answer,- as a separate defense, alleges, “ that there is a defect of parties defendant herein, in that at the time of the commencement of this action one John Mulhall was, and now is, an occupant of a part of the premises described in the complaint, as a tenant of one Eachel Duffy, who was, and still is, the legal owner and in possession of the whole of said premises, and neither of said persons has been made party defendant herein.” To that defense the plaintiff demurred as being insufficient in law and his demurrer was overruled at the Special Term. Upon appeal the General Term reversed the decision of the Special Term and sustained the demurrer. That such a defense is insufficient in law cannot be doubted. So far as the facts are therein alleged, it does not appear that Mulhall, however an occupant of a part of the premises, holds adversely to the plaintiff and it may well be, for all that appears, that he acknowledges the rights of the plaintiff. Though Eachel Duffy may be the legal owner and in posses *257 sion of the whole of the premises, that allegation is not equivalent to an allegation that she is in occupation thereof and her ownership and possession may be in subordination to plaintiff’s title; as Mulhall’s occupation of the premises may be without any hostility to the claim of the plaintiff under his tax lease. Passing over what seems to be defective in the allegations-constituting this defense in the answer to the complaint, the-question arises whether the plaintiff in ejectment is obliged to make all those who may be occupants of the premises described parties defendant. Section 1502 of the Code of Civil Procedure provides that, “ if the property is actually occupied, the occupant thereof must be made defendant in the action.” That language is hardly open to the reading that all the occupants must be sued in one action. Undoubtedly the plaintiff may make every occupant a defendant in his action; but I do not think that he is obliged to do so by the Code. We may read the words in section 1502, “ the occupant thereof,” as meaning an occupant and not all the occupants. It is difficult to perceive any good reason for permitting these defendants to object to the non-joinder of another defendant, when such joinder could in no wise benefit them nor be necessary for the determination of their rights. We can see how Mulhall as an omitted party might claim the right to be made a party to the action, if he deemed his interest in the real property to be imperilled; but how the defendants, who are alleged to be wrongdoers with respect to the plaintiff’s property rights, have any interest which the law will recognize, in having another or other wrongdoers joined with them as defendants, we do not perceive. In whatever light we look at the nature of this defense, which the defendants have interposed to the complaint, we think it insufficient in law and, therefore, we agree with the General Term below that the demurrer should have been sustained and their judgment should be affirmed, with costs. All concur. Judgment affirmed.