This court has held on a former appeal that the action was maintainable. (198 App. Div. 959.) It is the law of the case. A new question has arisen on the second trial. By the proofs it has been demonstrated that the plaintiff is not the sole owner of the premises which have been damaged by the trespass of the defendant. The property is owned by the plaintiff and his wife as tenants by the entirety. The wife has not been joined as a party plaintiff. The plaintiff is thus proved not to have been the sole person entitled to share in a judgment founded upon a verdict where the jury obviously did not measure the plaintiff's recovery in accordance with his separate interest in the property.
If we were without jurisdiction to correct the error, a reversal would be necessary; but if this court can give effect to the finding of the jury that the defendant committed a wrong against this property to the damage thereof and that the amount of such damage was $200, without prejudice to the substantial rights of the defendant, we should do so. The spirit of our new procedure is to lessen the law’s delays, to look through the forms of law to find the substance, to do justice and to do it more expeditiously.
The most that the defendant is entitled to ask in justice to itself is that the judgment shall stand as a complete recovery for the damage done to all parties in interest. That was the evident intent of the plaintiff in bringing the action and that is the effect of the judgment according to plaintiff’s own contention. If the wife of the plaintiff can be brought in as a party plaintiff to share in the judgment and to have her rights against the defendant thereby cut off, complete justice will be done.
I entertain no doubt of our authority to accomplish that result by affording the wife of the plaintiff an opportunity to intervene, which presumably she would do if given that opportunity.
The order should be reversed, without costs, and the wife of the plaintiff given twenty days after notice of the entry of the order *589of this court within which to make application to the court at Special Term to be made a party plaintiff, whereupon an appropriate amendment may be made and judgment entered accordingly; otherwise, the order should be affirmed, with costs. (Civil Practice Act, §§ 105, 111, 192, 193.) This will save the rights of all parties and under the liberal rules now in force, the court ought to end the litigation if possible.