Crowley v. Murphy

Truax, J.

It is not necessary for us to determine the interesting questions suggested by counsel for respondent. If Ellen Daly was not. a necessary party, plaintiff should not have made the motion that he did make. We think that in view of the fact that there have been two trials of this action, and that defendant had paid one large bill of costs to plaintiff, and because of the loches of plaintiff in making the motion, the motion should have been denied, and plaintiff left to commence his action anew. There is another and more important reason why the motion should have been denied. This is an action of ejectment. As before stated, the case has been tried twice. And the defendant has availed herself of the statutory right given by section 1525, and has paid the costs required by that section in ordér to obtain a new trial. This new trial should be of the same issues as those that were tried in the first action. One of the issues tried in the first action was whether, as against the plaintiff in that action, there had been adverse possession. How, if the amendment sought for is allowed, a newissue will be presented in this action, viz., whether the defendant can show adverse possession not only against the plaintiff, Cornelius J. Crowley, but against another person, Ellen' Daly. The plaintiff, if he saw fit to do so, could have discontinued this action, and could have begun another, in which new action he could have brought in all of the necessary parties. The order appealed from is reversed, with costs, and the motion is denied, with $10 costs. ‘