#### Wilhelmina Croft, Administratrix, &c., of Margaret Fisher, Appellant, *against*Rachel King *et al.*Executors, &c., of George King, Respondent.

(Decided April 7th, 1879.)

An undertenant must be made a party to summary proceedings by a landlord to recover demised premises for non-payment of rent, and where such an undertenant is removed under a warrant issued in such proceedings, to which she is not a party, the act is a trespass, for which the landlord who caused such removal is liable.

Where a landlord sued out a dispossess warrant, which commanded the marshal “ to remove all persons from said premises, and put the said G. K. (the landlord) *266into the full possession thereof,” and by his agent caused it to be executed by the marshal, and when informed of the acts of the marshal in executing it said that the marshal had done his *duty,—Held,*that the landlord was liable for the acts of the marshal in removing, under the warrant, an undertenant who was not, but should have been, a party to the proceedings to dispossess.

*It seems,*that where, after a landlord has sued out a dispossess warrant in summary proceedings, to recover the possession of demised premises for non-payment of rent, he accepts as his tenant one of the persons in possession of the premises, he is not bound to notify the marshal to whom the warrant has been issued of such new tenancy and countermand the warrant against such person.

Appeal from a judgment of the general term of the Marine Court of the city of New York, affirming a judgment of that court dismissing the complaint, entered in the lifetime of Margaret Fisher and George King, a

The complaint charged that the defendant, George King, was the owner of the premises 431 Seventh Avenue, New York, and that the plaintiff was a tenant therein, and that the defendant procured one Farley to unlawfully and forcibly remove plaintiff, destroying her furniture and carrying away $575 in money.

The answer admitted the defendant was the owner of the premises, but denied the rest.

King having died after trial, his executors were substituted as defendants ; and Margaret Fisher having died subsequent to the hearing of the appeal at the general term of the Marine Court, her administratrix was substituted as plaintiff.

On the trial the plaintiff proved she was in occupation of, and possessed of, a room and two bedrooms in said premises, which she had hired from one Becker, King’s tenant. King, on the 31st day of December, 1874, obtained a warrant to dispossess Becker and all other persons from the justice of the Eighth District Court in the city of New York, and caused it to be delivered on that day to Cornelius Farley, marshal, to execute it and put him, King, in full possession of the premises.

King, subsequently to the delivery of the warrant to the officer to execute, sent plaintiff a note to pay the rent to *267Mr. Brown (the agent of King). Mr. King’s son came and told her to pay the rent to Brown, which she did, and she got a receipt for the month of January, 1875, and dated January 7th, 1875. On the 9th of January the defendant, King, not having countermanded the warrant, nor having-informed the officer of the letting to the plaintiff, Marshal Farley and his men, by the command of the warrant, came and put her property in the street.

King wrote on back of the warrant, after the ejection of the plaintiff, viz.: “ *The marshal has done his duty; settle with him.*Signed, George King." When the marshal and agent informed him of the ejection, he said the marshal was simply doing his duty in putting the people out.

*Solomon F.*Higgins, for appellant.

*Adolp. L.*Sanger, for respondents.

Van Hoesen, J.

If the warrant had run against Becker only the case of *Welsh*v. *Cochran*(63 N. Y. 181) would have been directly in point. But it required the° removal of “ all persons ” from the premises, and that King, the landlord, should be put in full possession. The warrant was in due form, and was not broader than the statute permits. Tenants, their assigns, their undertenants, and their legal representatives, ought properly to be made parties to summary proceedings; and there is a provision of the statute under which any person may become a party, or obtain A hearing, by showing that he has possession, or that he claims possession, of the premises, and by denying by affidavit any of the averments of the landlord’s affidavit. The statute contemplates the joinder of the tenant, and of all who derive title through him, in the proceedings instituted by the landlord ; but there are other persons who may be lawfully on the premises, and who may lawfully be removed without having their day in court, or any opportunity to object to the proceedings. The wife, the children, the servants, the boarders, the guests of the tenant, may all be removed under the *268warrant by virtue of which he is dispossessed, though they have not been made parties. These are those whom the statute refers to when it provides that the warrant shall direct the removal of “ all persons.” When a marshal receives a warrant he knows that there may be persons whom it may be necessary to remove, in order to give the landlord possession, whose names do not appear in the papers. He must dispossess them ; and the warrant is his authority for so doing. In this case he did the very thing he was directed to do ; and he did not dispossess anyone whom his warrant did not run against. The marshal was not liable, therefore, for executing the warrant. It was regular in form; the magistrate had jurisdiction of the subject-matter; and there was nothing to show that he had not jurisdiction of the persons of those whose property was to be removed from the premises, and who were themselves to be evicted. It was not for the marshal to enquire whether the plaintiff was an undertenant, who ought to have been made a party, or a boarder, whom it was not necessary to make a party; his duty was simply to put her out, and to put King in possession. This he did. Now it appears that she .was an under-tenant of Becker; she ought, therefore, to have been joined in the proceedings. *(Sims*v. Humphrey, 4 Den. 10, 185 ; *Hill*v. Stocking, 6 Hill, 314 ; *Starkweather*v. Seeley, 45 Barb. 164.)

It was a trespass to dispossess her without giving her an opportunity to make her defense. She might have paid the rent to protect her possession, or she might have taken a valid objection to some of the landlord’s proceedings. At any rate, the statute gave her a right to a hearing, and the landlord ought to answer in damages for the wrong. The plaintiff is answerable if the court proceeds at his application without jurisdiction, whether of the subject-matter or of the .person. *(Savacool*v. Boughton, 5 Wend. 170*; Starkweather*v. *Seeley,*45 Barb. 164.)

It was said that the landlord knew nothing of these pror ceedings; but he instigated them, sued out the warrant, and, by his agent, caused it to be executed by the marshal. *269It was not necessary that he himself should have had the matter in his personal charge. He knew that the warrant was out, and said that the marshal had done his duty in executing it.

King himself admitted that he directed the institution of the proceedings. It is the law that a party to the record is generally responsible for whatever is done in his name. (*Brown*v. Feeter, 7 Wend. 301.) And where, as in this case, a party orders proceedings to be taken, he ought not to be excused from liability because he does not know all the details rendered necessary by the practice of the courts. The counsel for the appellant insisted that after the letting by King to the plaintiff it became the duty of King to notify the marshal of the new tenancy, and to countermand the1 warrant against the plaintiff. *Scheibel*v. *Fairbrain*(1 Bos. & Pull. 388) and *Brown*v. *Feeter*(7 Wend. 301) are authorities holding the other way. I think the judgment of the Marine Court should be reversed and a new trial ordered, with costs to the plaintiff to abide the event.

Charles P. Daly, Ch. J., concurred.

Judgment reversed, and new trial ordered with costs to the plaintiff to abide the event.