$ 1650. [Am'd 1891.] An action may be maintained, as prescribed in this article, by or against a corporation, or by or against an unincorporated association, as if it was a 136 N. Y. 10 natural person, or such an action may be maintained by or 17 Misc. against the receiver or other successor of any such corpora tion or association. ARTICLE SIXTH. 1651. Who liable to action for waste. 1652. Action by heir, devisee, or grantor of reversion. 1653. Id.; by ward against guardian. 1654. Id.; by grantee of real property sold under execution. 1655. Judgment in action against tenant of par ticular estate. § 1656. Action against joint ten- mon. 1657. Id.; interlocutory judg 1658. Id.; damages to be de- 1659. View; when not neces- § 1651. An action for waste lies against a tenant by the 46 Hun, 6 curtesy, in dower, for life, or for years, or the assignee of such a tenant, who, during his estate or term, commits waste upon the real property held by him, without a special and lawful written license so to do; or against such a tenant, who lets or grants his estate, and, still retaining possession thereof, commits waste without a like license. 1652. An heir or devisee may maintain an action for 46 Hun, 6 waste, committed in the time of his ancestor or testator, as well as in his own time. The grantor of a reversion may maintain an action for waste, committed before he aliened the same. $1653. Such an action may also be maintained against a guardian by his ward, either before or after the termination of the guardianship, for waste, committed upon the real property of the ward, during the guardianship. 1654. Where real property is sold by virtue of an execution, the person, to whom a conveyance is executed pursuant to the sale, may maintain an action for waste, cominitted thereon after the sale, against the person, who was then in possession of the property. § 1655. If the plaintiff recovers in an action for waste, 46 Hun, 6 other than an action brought as prescribed in the next section, the final judgment must award to him treble damages. Where the action is brought by the person next entitled to the reversion, and it appears, in like manner, that the injury to the estate in reversion is equal to the value of the tenant's estate or unexpired term, or that it was done maliciously, the final judgment must also award to the plaintiff the forfeiture of the defendant's estate, and the possession of the place wasted. 1656. An action for waste may also be maintained, by a joint tenant or tenant in common, against his co-tenant, 7 App. Div. 317. who commits waste upon the real property held in joint tenancy or in common. If the plaintiff recovers therein, Le is entitled, at his election, either to a final judgment for treble damages, as specified in the last section, or to have partition of the property, as prescribed in the next two sections. § 1657. Where the plaintiff elects to have partition, as prescribed in the last section, if the pleadings, verdict, report, or decision, do not determine the rights and interests of the several parties in the property so held in joint tenancy or in common, the court must ascertain them, by a reference or otherwise. If it appears that there are persons, not parties to the action, who must have been made parties to an action for the partition of the property, they must be brought in by a supplemental summons, and, if necessary, supplemental pleadings must be made. When the rights and interests of all the parties are ascertained, an interlocutory judgment for the partition or sale of the property must be rendered, and the subsequent proceedings thereon must be the same, as in an action for the partition of the property, except as otherwise prescribed in the next section. 1658. The plaintiff may elect to take final judgment for the single damages awarded to him, or that, in making the partition, or in dividing the proceeds of a sale, so much of the share of the defendant in the real property, or the proceeds thereof, as will be sufficient to compensate the plaintiff for his single damages, and the costs of the action, other than the expenses of making the partition or sale, be laid off or paid, as the case may be, to the plaintiff. The residue of the property or proceeds, not laid off or dis tributed to the plaintiff or the defendant, must be laid off or paid to the persons entitled thereto, according to their respective rights and interests. § 1659. In an action for waste, it is not necessary, either upon the execution of a writ of inquiry, or upon the trial of an issue of fact, that the jury, the judge, or the referee, should view the property. Where the trial is by a referee, or by the court without a jury, the referee or the judge may, in his discretion, view the property, and direct the attorneys for the parties to attend accordingly. In any other case, the court may, in its discretion, by order, direct a view by the jury. § 1660. An action for a nuisance may be maintained in any case, where such an action might have been maintained under the laws in force, immediately before this act takes effect. § 1661. A person by whom the nuisance has been erected, and a person to whom the real property has been transferred, may be joined as defendants in such an action. § 1662. A final judgment in favor of the plaintiff may award him damages, or direct the removal of the nuisance, or both. § 1663. This article does not affect an action, wherein the complaint demands judgment for a sum of money only. ARTICLE EIGHTH. OTHER ACTIONS RELATING TO REAL PROPERTY. § 1664. Certain persons holding over deemed trespassers. Action against them. 1665. Reversioner, etc., may maintain action. 1666. Joint tenant, etc., may maintain action against his co-tenant. § 1667. Action for cutting, etc., trees. 1668. Id.; when treble dam- § 1664. A person in possession of real property, as guardian or trustee for an infant, or having an estate determinable upon one or more lives, who holds over and continues in possession, after the determination of his trust or particular estate, without the express consent of the person then immediately entitled, is a trespasser. An action may be maintained against him, or his executor or administrator, by the person so entitled, or his executor or administrator, to recover the full value of the profits, received during the wrongful occupation. Supp. 920. § 1665. A person, seized of an estate in remainder or 6 N. Y. reversion, may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening 130 N.Y. 360 estate for life or for years. § 1666. A joint tenant or a tenant in common of real property, or his executor or administrator, may maintain an action to recover his just proportion against his cotenant, who has received more than his own just proportion, or against his executor or administrator. § 1667 If any person cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner's leave; or on the common, or other land, of a city, village, or town, without having right or privilege in those lands, or license from the proper officer; an action may be maintained against him, by the owner, or the city, village, or town, as the case may be. § 1668. In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum so stated. Thereupon, if the inquisition, or, where issues of fact are tried, the verdict, report, or decision, awards 50 Hun, 199. 73 Hun, 269. 3 App. Div. 329. 73 Hun, 269 him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases, judgment must be rendered for single damages only. 1. Where the verdict, report, or decision finds affirmatively that the injury for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. 2. Where the defendant had pleaded, and the verdict, report, or decision finds affirmatively, that the injury, for which the action was brought, was committed by taking timber, for the purpose of making or repairing a public road, or a public bridge; or by taking any wood, underwood, or tree, for a like purpose, by authority of a commissioner or overseer of highways. § 1669. If a person is disseized, ejected, or put out of real property, in a forcible manner; or after he has been put out, is held and kept out, by force, or by putting him in fear of personal violence, he is entitled to recover treble damages, in an action therefor against the wrongdoer. 46 Hun, 515. 136 N. Y. 569, 15 App. Div. 413. § 1670. In an action brought to recover a judgment 12 Abb. N. affecting the title to, or the possession, use, or enjoyment C. 407. of, real property, the plaintiff may, when he files his complaint, or at any time afterwards before final judgment, file, in the clerk's office of each county where the property is situated, a notice of the pendency of the action, stating the names of the parties, and the object of the action, and containing a brief description of the property in that county affected thereby. Such a notice may be filed with the complaint, before the service of the summons; but, in that case, personal service of the summons must be made upon a defendant, within sixty days after the filing, or else, before the expiration of the same time, publication of the summons must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in chapter fifth of this act. 122 N.Y. 484 8 App. Div. § 1671. Where a notice of the pendency of an action may be filed, as prescribed in the last section, the pendency of the action is constructive notice, from the time of so filing 149. the notice only, to a purchaser or incumbrance r of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed as prescribed in the next section. A person whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action. § 1672. Each county clerk with whom such notice is 3 App. Div. filed, must immediately record it, in a book kept in his office 149. for that purpose, and index it to the name of each defendant, specified in a direction, appended at the foot of the notice, and subscribed by the attorney for the plaintiff. The expense of procuring a new book, when necessary, must be paid out of the county treasury, as other county charges. § 1673. Where a defendant sets up in his answer a counterclaim, upon which he demands an affirmative judgment, affecting the title to, or the possession, use, or enjoy. me it of, real property, he may, at the time of filing his answer, or at any time afterwards before final judgment file like notice. The last three sections apply to such a notice. For the purpose of such an application, the defendant filing such a notice is regarded as a plaintiff, and the plaintiff is regarded as a defendant. The Union Surety and Cura 10 Civ. Pro, 72. |