De Puy v. Strong
New York Court of Appeals
Appeal from the general term of the Supreme Court, in the third district, where a judgment of nonsuit, entered upon the trial, had been sustained, and a motion for a new trial denied. This was an action by Thomas P. H. De Puy and wife, and Moses De Puy, against Austin Strong and Medad T. Morss, for a trespass upon the plaintiffs’ lands.
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Appeal from the general term of the Supreme Court, in the third district, where a judgment of nonsuit, entered upon the trial, had been sustained, and a motion for a new trial denied. This was an action by Thomas P. H. De Puy and wife, and Moses De Puy, against Austin Strong and Medad T. Morss, for a trespass upon the plaintiffs’ lands. The complaint averred, that the plaintiffs were the owners of certain undivided interests in the lands in question, and that the defendants had trespassed thereon. The defendants demurred, on the ground of the non-joinder of the other tenants in common. The…
1Opinion of the CourtFullerton, J.
(after stating the case.)—it must be conceded, that, before the Code, the rule in this state was, that tenants in common must join in actions to recover for injuries to the realty. (Austin v. Hall, 13 Johns. 286; Low v. Mumford, 14 Id. 426; Decker v. Livingston, 15 Id. 479; Hill v. Gibbs, 5 Hill 56, note.) This rule has not been altered by the Code. The only change it has made is in the mode of taking advantage of a defect of parties. Under the old system, the only remedy was by plea in abatement, and if that were not interposed, a tenant in common could still recover. The defendant could…
2Cases cited5 opinions
- Zabriskie v. . SmithNew York Court of Appeals · 1855
- Austin v. HallNew York Supreme Court · 1816
- Baggott v. BoulgerThe Superior Court of New York City · 1853
- Donnell v. . WalshNew York Court of Appeals · 1865
- Osgood v. WhittelseyNew York Supreme Court · 1860
3Cited by1 opinion
- Alabama Grocery Co. v. 1st National BankSupreme Court of Alabama · 1908