CHAPTER XIV. Special Provisions Regulating Actions relating to Property. TITLE I.-Actions Relating to Real Property. TITLE II.-Actions Relating to Chattels. TITLE I. Actions relating to real property. Article 1. Action to recover real property. 2. Action for partition. 3. Action for dower. 4. Action to foreclose a mortgage. 5. Action to compel the determination of a claim to real property. 6. Action for waste. 7. Action for a nuisance. 8. Other actions relating to real property. 9. Provisions applicable to two or more of the actions specified in this title. ARTICLE FIRST. Action to recover real property. Sec. 1496. Plaintiff may recover damages with the land. 1497. Rents and profits to be included in damages. 1498. Mortgagee cannot maintain action. 1499. Action cannot be maintained for dower. 1500. Separate action by joint tenant or tenant in common. 1502. Against whom action to be brought. 1503. Who may be joined as defendants. 1504. When action may be brought for non-payment of rent. 1511. Property claimed in action; how described in complaint. 1514. Evidence of authority. 1515. When ouster to be proved. 1516. Rule when there are distinct occupants. 1517. The last section qualified. 1518. When plaintiff may recover against one defendant, rights of others. 1519. Verdict, etc., to state nature of plaintiff's estate. 1521. Abatement of action. subject to 1522. Action to be divided, when different persons succeed to different parcels. 1523. Id.: when different persons succeed to real property and to rents and profits. 1524. Effect of judgment rendered after trial of issue of fact. 1525. New trial may be granted. 1526. Effect of judgment by default, etc. 1527. Id.; exception in cases of disability. 1528. The last three sections qualified. 1529. Possession not to be changed by vacating of judgment, except, etc. 1530. Evidence on new trial. 1531. Damages recoverable; set-off by defendant. § 1496. Plaintiff may recover damages with the land. In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property, New in form. See Co. Civ. Proc., § 484, subd. 5; Co. Proc., § 167, subd. 5. § 1497. Rents and profits to be included in damages. Those damages include the rents and profits or the value of the use and occupation of the property, where either can legally be recovered by the plaintiff. Annulling the law as settled in 57 N. Y. 151; 2 R. S. 310, §§ 43, 44 and 45 (2 Edm. 219). See § 1531, post. § 1498. Mortgagee cannot maintain action. A mortgagee, or his assignee or other representative, cannot maintain such an action, to recover the mortgaged premises. 2 R. S. 312, § 57 (2 Edm. 321). 1499. Action cannot be maintained for dower. Such an action cannot be maintained, in a case where an action for dower may be maintained, as prescribed in article third of this title. See 1604, post. § 1500. Separate action by joint tenant or tenant in common. Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an action, to recover his or their undivided shares in the property, in any case where such an action might be maintained by all. § 1501. [Am'd, 1882.] Grantee of lands held adversely may maintain action. Such an action may be maintained by a grantee, his heir or devisee, in the name of the grantor, or his heir, where the conveyance, under which he claims, is void because the property conveyed was held adversely to the grantor. The plaintiff must be allowed to prove the facts to bring the case within this section. In such an action a judgment against the plaintiff shall not award costs to the defendant; but where the defendant is entitled to costs as prescribed in section three thousand two hundred and twenty-nine of this act, they may be taxed, and the person who maintained the action in the plaintiff's name may be compelled to pay the same as prescribed in section three thousand two hundred and forty-seven of this act, Co. Proc., 111; 1 R. S. 739, § 147 (1 Edm. 690). § 1502. Against whom action to be brought. Where the complaint demands judgment for the immediate possession of the property, if the property is actually occupied, the occupant thereof must be made defendant in the action. If it is not so occupied, the action must be brought against some person exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action. 2 R. S. 304, § 4 (2 Edm. 312). § 1503. Who may be joined as defendants. In either of the cases specified in the last section, any other person claiming title to, or the right to the possession of, the real property sought to be recovered, as landlord, remainderman, reversioner, or otherwise adversely to the plaintiff, may be joined as defendant in an action therefor. See Co. Proc., §§ 118 and 1500. § 1504. When action may be brought for non-payment of rent. When six months' rent or more is in arrear, upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee, or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear, or re-entry on the property. 2 R. S. 505, § 30 (2 Edm. 521). § 1505. Id.; when right of re-entry is reserved for want of distress. Where a right of re-entry is reserved and given to a grantor or lessor of real property, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of rent due, the re-entry may be made, or an action to recover the property de mised or granted, may be maintained by the grantor or lessor, or his heir, devisee, or assignee, at any time after default in the pay ment of the rent; provided the plaintiff, at least fifteen days before the action is commenced, serves upon the defendant a written notice of his intention to re-enter, personally, or by leaving it at his dwelling-house on the premises with a person suitable age and discretion; or, if the defendant cannot be foun with due diligence, and has no dwelling-house on the premises, whereat a person of suitable age and discretion can be found by posting it in a conspicuous place on the premises. L. 1846, ch. 274, § 3 (4 Edm. 432), am'd.' § 1506. Action against tenant, when proceedings to be stayed. At any time before final judgment for the plaintiff is rendered. and the judgment-roll is filed, in an action brought as prescribed in either of the last two sections, the defendant may pay o tender to the plaintiff or his attorney, or pay into court, all the rent then in arrear, with interest and the costs of the action to be taxed; and thereupon the complaint must be dismissed. Amending 2 R. S. 505, § 32 (2 Edm. 521). 1507. Id.; amount of rent in arrear to be stated in judgment. ཝཾ་༔ ** In such an action, a verdict, report, or decision in favor of the plaintiff, must fix the amount of rent in arrear to the plainti or, if judgment is taken by default, the amount thereof must be ascertained by or under the direction of the court; and, in either case, it must be stated in the judgment. § 1508. Id.; when possession to be restored to defendant. At any time within six months after possession of the property, awarded to the plaintiff in such an action, has been delivered to him by virtue of an execution issued upon a judgment rendered therein, the defendant, or any person who has succeeded to his interest, or a mortgagee of the lease, or of any part thereof, who was not in possession when final judgment was rendered, may pay or tender to the plaintiff, or his executor, administrator, or attorney, or may pay into court, for the use of the person so entitled thereto, the amount of rent in arrear, as stated in the judgment, and the costs of the action, with interest, and all other charges incurred by the plaintiff. 2 R. S. 505, § 33 (2 Edm. 521). $ 1509. The same. Within three months after making the payment or tender, the person who made it, or his representative, may apply to the court for an order that possession of the property be delivered to him; and thereupon, upon proof of the facts, and payment of the sum due by reason of rent accruing since the judgment was rendered, and upon compliance with all other terms to be complied with by the grantee or lessee, to the time of the application, the court must make an order, directing that possession of the property be delivered to the applicant, who shall hold and enjoy the same, without any new grant or lease thereof, according to the terms of the original grant or lease. Notice of the application must be served upon the plaintiff's attorney. 2 R. S. 506, §§ 35 and 36 (2 Edm. 522). § 1510. Id.; use of property, when set off against rent. If possession of the property recovered has been delivered to the plaintiff, by virtue of an execution issued upon a judgment in the action, the order must provide for setting off the sum which the plaintiff has made, or which he might, without wilful neglect, have made, of the property, during the possession thereof, against the rent accruing after the judgment was rendered, and for reimbursement to the applicant of the balance, if any, of the sum paid into court by him, after making the set-off prescribed in this section. { Id., § 38. § 1511. Property claimed in action; how described in complaint. The complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto. 2 R. S. 304, § 8 (2 Edm. 313), am'd. See, also, § 1435, ante. 1512. Motion for plaintiff's attorney to produce his authority. A defendant, in an action to recover real property or the possession thereof, may, at any time before answering, upon an affidavit that evidence of the authority of the plaintiff's attorney to commence the action has not been served upon him, apply, upon notice, to the court or judge thereof, for an order directing the attorney to produce such evidence. Amending and consolidating §§ 17 and 18, 2 R. S. § 1513. Order thereupon. Upon such an application, the court or judge must, in a proper case, make an order, requiring the plaintiff's attorney to produce, as directed therein, evidence of his authority to commence the action, and staying all proceedings therein, on the part of the plaintiff, until the evidence is produced. Id., § 19. § 1514. Evidence of authority. Any written request of the plaintiff or his agent, to the plaintiff's attorney, to commence the action, or any written recognition of his authority so to do, verified by the affidavit of the attorney, or any other competent witness, is sufficient presumptive evidence of such authority. Id., § 20. 1515. When ouster to be proved. Where the action is brought by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually ousted him, or did some other act, amounting to a total denial of his right. Id., § 27. 1516. Rule when there are distinct occupants." Where there are two or more defendants, and it is alleged, in the answer of either of them, that he occupies in severalty, or that he and one or more of his co-defendants occupy jointly, one or more distinct parcels, and that one or more other defendants possess other parcels, in severalty or jointly, the court may, in its discretion, upon the application of the plaintiff, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary. If the action is not so divided, and it appears, upon the trial, that the allegation is true, the plaintiff must, before the evidence is closed, elect against which defendant or defendants he will proceed; and a judgment dismissing the complaint must thereupon be rendered, in favor of the other defendants. Id., § 29, in substance. 1517. The last section qualified. The last section does not apply to a case, where two or more defendants occupy different apartments in a building. In such a case, in an action to recover the building and its curtilage, the plaintiff is entitled to judgment jointly against all the defendants who are liable to him. § 1518. When plaintiff may recover against one defendant subject to rights of others. Section 1516 of this act does not apply to a case, where one or more defendants, answering as therein prescribed, hold under another defendant, and the plaintiff elects to proceed against the latter, subject to the rights and interests of the former. In such a case, the proceedings against the defendant so answering must |