#### HALL v. CAMPBELL et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Parties—New Defendants.

Plaintiff’s motion in an action for partition to bring in a new defendant, and to drop the names of some of the defendants from the title of the case, and to amend the complaint accordingly, will be granted where the original defendants were the only persons who, when the action was brought, appeared to have any interest in the premises, but a deed conveying the interest of one of the defendants to a codefendant was afterwards recorded, and the other defendants proposed to be dropped were the hems of a cotenant who died three years before the action, but his will, devising all his interest in the property to defendant, was not admitted to probate until afterwards, of which deed and will plaintiff did not know when he brought his action; and it is immaterial that the proposed new defendant had commenced an action for partition of the same premises.

Appeal from special term, Albany county.

Action by Frederick Hall against Adeline Campbell and others for partition. From an order denying plaintiff’s application for leave to bring in Ida E. Hall, and make her a .party defendant, and that a supplemental summons be issued directed to her, and that the names of the defendants Frank Hall, George Hall, J. Savage *1032Hall, Bertie Hall, Florence Hall, and Willis Hall be dropped from the title of the action, and that the action be discontinued as to them, and that the title and complaint be amended accordingly, and that plaintiff may have leave to make and serve a supplemental and amended complaint, alleging certain facts of which he was ignorant when his former complaint was made, and which occurred after his former pleading, plaintiff appeals. Reversed.

Argued before MAYHAM P. J., and PUTNAM and HERRICK, JJ.

Stephens & Delaney (Peter A. Stephens, of counsel), for appellant.

Stedman, Thompson & Andrews (George *W.*Stedman, of counsel), for respondents.

PUTNAM, J.

This action was commenced on the 14th of July, 1893, for the partition of certain real estate described in the complaint, of which one Ozias Hall died seised. The plaintiff, one of the heirs of Ozias, made all the other heirs of said deceased parties' defendant, they and said plaintiff appearing to be the only persons who had any interest in the land sought to be partitioned. Plaintiff in his complaint alleged that Willis Hall and Sharon Hall, two of the defendants, were each seised of an undivided ninth part of the premises in question. In fact, prior to the commencement of the action, Willis had conveyed his interest therein to Sharon, so that Willis was an unnecessary party, and the interest of Sharon was two-ninths, instead of one-ninth, as alleged in the complaint. The deed from Willis to Sharon was not put on record until after the commencement of the action, and its existence was unknown to plaintiff. The complaint also alleged that one George Hall, a son of said Ozias, died nearly three years before this action was commenced, intestate, leaving five children, who were made parties. In fact, however, said George left a will, which was admitted to probate on August 3, 1893, after the commencement of the action. In the will he bequeathed his interest in the real estate in question to his widow, Ida Hall, who was not a party, and who at once commenced an action to partition said land, making the proper parties defendants. Plaintiff did not know of the existence of said will when he served his complaint. He moved to be allowed to serve an amended and supplemental summons and complaint, in which the names of the said heirs of George Hall and the name of said Willis Hall shall be omitted as defendants, and the name of Ida Hall inserted in the title thereof, and appropriate amendments made to the complaint, showing the interest of Ida and said Sharon Hall in said premises. The motion was denied, and the plaintiff appeals.

It is impossible to find any fault with the procedure of the plaintiff. He made all the parties defendants who, when he commenced the action, appeared to have any interest in the premises. The mistake made was not due to any laches or neglect on his part. It arose from the fact that the deed from Willis to Sharon Hall had not been placed on record, and that the will of George Hall had not been admitted to probate, although nearly three years had elapsed since his death. The mistake of plaintiff was unavoidable. He appears *1033to have commenced his action in good faith, and to have been regular in" his practice, and having, without fault on his part, omitted to make Ida Hall a party defendant, I think it would have been “in furtherance of justice” to have granted his motion. Under the provisions of sections 723 and 452, Code of Civil Procedure, he was entitled to the relief he asked for.

The fact that Ida Hall had also commenced an action to procure the partition or sale of the same premises need not be now considered. The plaintiff’s action was first commenced, and, under the circumstances, he, having by a mistake not attributable to any want of care or negligence on his part omitted a necessary party defendant, should have, under the provisions of the above-cited sections of the Code of Civil Procedure, the amendment he asks for. When the amendment is made, the court can properly determine whether or not the two actions shall further proceed, and, if not, which action shall be stayed.

It is suggested by respondents that the parties are unable to defray the expenses of two partition actions. This expense could have been avoided had Ida Hall made an application, under the provisions of section 452, supra, to be made a party defendant in the first action. But, doubtless, the court, on a proper application, and when all the parties interested are before it, will make an order staying the further prosecution of one of the actions. Kimball v. Mapes, 19 N. Y. Wkly. Dig. 481, 98 N. Y. 629; Burlingame v. Parce, 12 Hun, 149; McCarthy v. Peake, 18 How. Pr. 139; Dolbeer v. Stout (Super. N. Y.) 19 N. Y. Supp. 820; Railroad Co. v. Robinson, 15 N. Y. St. Rep. 237. I think the order should be reversed, with costs and disbursements, and motion granted, without costs in the court below.

MAYHAM. P. J.. concurs. HERRICK, J., not acting.