5 N.Y. 558 | NY | 1851
Heacock conveyed the premises in question in this suit to the defendant Kursch, who was in possession under Heacock's deed when this suit was commenced against him. Kursch refused at first to defend the suit, but permitted Heacock to defend in his name. Heacock accordingly employed an attorney and counsel, and defended the suit in Kursch's name, but judgment was nevertheless rendered in favor of the plaintiffs. An execution was issued, part of the costs collected, and the execution returned unsatisfied as to the residue. The plaintiffs moved the supreme court for an *559 order against Heacock directing him to pay the uncollected balance of the costs. This motion was denied with costs, first at the special, and then on appeal at a general term of the supreme court. The plaintiff appeals from the order denying the motion.
In Jackson v. Van Antwerp, (1 Wendell, 295,) it was decided that a landlord defending an ejectment in the name of his tenant, may be compelled to pay the costs of the suit. But it is said that this decision was overruled in subsequent cases. Mr. Justice BRONSON did not intend to overrule it, or to question its correctness by what he said in Miller v. Adsit, (18 Wend. 674.) He notices the case and regards the action of ejectment as standing on peculiar grounds. Miller v. Adsit was an action of replevin; and Bendernagle v. Cocks, (19 Wend. 151,) which is supposed to be at variance in principle with Jackson v. Van Antwerp, was an action on contract. Ryers v. Hedges, (1 Hill, 646,) was an action of ejectment in which the plaintiff moved that Bogert, who was alleged to be the defendant's landlord, should be ordered to pay the costs on the ground that he had defended the suit unsuccessfully in his tenant's name. But the relation of landlord and tenant between them was denied both by Bogert and the defendant, and their denial was fortified by other affidavits "too "strongly," says Mr. Justice COWEN, "to warrant us in "granting this motion upon the present state of the proofs." He further observes that the decision in Jackson v. Van Antwerp was contrary to the principle of Miller v. Adsit. But in this he evidently differs in opinion with Mr. Justice BRONSON. In another case decided at the same term, (Livingston v. Clements, 1 Hill, 648,) COWEN, J. says he should doubt whether the landlord who defends a suit in the name of his tenant, can be called on by the plaintiff to pay costs, and repeats that he thinks the case ofJackson v. Van Antwerp is overruled in principle by the case of Miller v. Adsit. We are called on to decide between the opinions of these learned judges. *560
The case of Jackson v. Van Antwerp was decided in 1828. At that time, and long before, there was a statutory provision requiring the defendant in ejectment holding the land as tenant of a third person, to give immediate notice thereof to his landlord; and authorizing the landlord to appear and to become a defendant to the suit jointly with the tenant; or alone if the tenant refused to appear. (1 R.L. 443.) If after becoming a defendant he failed in his defence, judgment and execution went against him for the costs. The intent of the statute was to give him an opportunity of defending his title, and to charge him with the costs if he failed. The landlord has frequently, and indeed most commonly, a greater interest in defending the suit, and preventing a change of possession, than his tenant; and the statute secured him against collusion between the tenant and the plaintiff. The decision in the case of Jackson v. VanAntwerp, (although the reason is not stated,) is well founded on the principle that the landlord ought not by collusion with, or favor of the tenant, to obtain the benefit which the statute gave him, without subjecting himself to the burthen it imposed upon him. There is no statutory provision of the like nature in relation to actions for personal property. Miller v. Adsit was a case of that kind; and if the rule in that case influenced the subsequent cases of Ryers v. Hedges, and Livingston v.Clements, I think it was misapplied; and that the case ofJackson v. Van Antwerp was rightly decided, upon the distinction between the cases to which the statute referred to applied, and those to which it did not.
But the relation of landlord and tenant did not exist between Kursch the defendant, and Heacock, who is sought to be made answerable for the costs in the present controversy. Heacock was Kursch's grantor with warranty, and although the statute of 1813, before referred to, did not embrace his case, so as to entitle him to be made a defendant, I think he is within the revision of that statute, now in force. (2 R.S. 341, 2, sec. 17.) By this section, "no imparlance voucher, *561 "aid, prayer, or receipt, shall be allowed; but whenever any "action shall be brought against any tenant to recover the "land held by him, or the possession of such land, the landlord "of such tenant, and any person having any privity of estate "orinterest with such tenant, or with such landlord, in "the premises in question, or in any part thereof, may be "made defendant with such tenant, in case he shall appear, "or may at his election appear without such tenant." It is plain not only from the words of the section, but from the reviser's note, (vol. 3d, 2d ed. p. 717,) that the intention was to permit any person to come in as a party and defend the suit, who in real actions could have been vouched or called in for that purpose; and Heacock, who had sold and warranted the land to Kursch the defendant, might have been so called in. The object of this statute seems to have been to enable the parties interested to settle the controversy in a single suit, without the delays incident to the ancient forms of proceedings in real actions. Heacock having been entitled to make himself a defendant, and having in fact litigated the plaintiff's title unsuccessfully, although in the defendant's name, is liable within the case ofJackson v. Van Antwerp, to pay the costs. The judgment of the superior court upon the motion was erroneous, and must be reversed, and an order entered in favor of the plaintiff, with costs in the supreme court.
Ordered accordingly. *562
