Van Alstine v. McCarty

By the Court, E. Darwin Smith, P. J. A dissiesee of land c'annot maintain an action against the dissiesor, or any one' acting under him, for an injury to the premises while he is out of possession, but after, a re-entry he can [333] recover for any such injury and for the rents and profits. (9 John. 61. 12 id. 183. 6 Bacon's Ab. 566. Hotchkiss v. Auburn and, Rochester Railroad Company, 36 Barb. 613.) The plaintiff brought ejectment against Brosnan, a tenant of the defendant, and recovered. The tenant gave notice to the defendant of the commencement of the suit against him, as required by the statute in such case, and the defendant must be deemed, under the evidence in the case, to have assumed the defense of the action. In this view of the evidence and of the facts, the recovery in the ejectment suit was conclusive against him. It is true that the statute declares the recovery in ejectment to be “ conclusive against the defendant and all persons claiming through or under such party by title occurring after the commencement of the action.” But the defendant having notice of the action, and having assumed its defense, must,-1 think, be deemed the real party in the suit, within the spirit and intent of the statute, or if not he is to be bound by the recovery on the ground that he had notice of the suit and was called on to defend. (Adams on Ejectment, 337. Hunter v. Britts, 3 Camp. 445. 2 Greenleaf on Evidence, §§ 333, 334.) It follows from these principles that the action was properly brought for the mesne profits against the defendant, and was sustainable. He received the rents pending the ejectment suit from Brosnan, his tenant, and it was admitted that the amount so received by him was $308. The action for such mesne profits as a substitute for the suggestion upon the record given by the Revised Statutes, (2 R. S. 310; 19 N. Y. Rep. 88;) lay against him, I think, on the ground that he was the real party defending the action and was bound by the recovery therein. But if he was not concluded on this ground, he was then clearly liable for such rents and profits at common law after the plaintiff recovered possession, on the ground that he had actually received such rents and profits. (Morgan v. Varick, 8 Wend. 587. Leland v. Tousey, 6 Hill, 328. 8 Wheaton, 80. , 11 Mass. [334] Rep. 569.) The plaintiff showed title, at the circuit, and produced the records and' proceedings in the ejectment suit, and proved that he had been restored to the possession. The defendant, if not concluded by the recovery in such suit, was at liberty to defend the action and disprove the plaintiff’s title. This he did not attempt to do, and in fact he made no defense. I cannot see, therefore, why the plaintiff was not entitled to a verdict, and think there should he a new trial, with costs to abide the event. [Monroe General Term, September 7, 1868. E. D. Smith, Johnson and J. C. Smith, Justices.] New trial granted.