4 Wend. 208
Decided May 15, 1830
New York Supreme Court · decided 1830-05-15
Order to stay waste. An order to restrain the committing of waste was applied for in this case, the plaintiff having commenced an ejectment for the recovery of about a third of a lot of land containing about 1700 acres, principally valuable on account of its timber. The defendants are in possession, claiming the lot as their own, and are cutting and carrying away the timber. Notice of the application was not given to the defendants.
Decided 1830-05-15
¶1By the Court,
¶2This is a case in which notice should have been given to the defendants, so that they might have been heard. The plaintiff claims only an undivided third of the lot; the defendants therefore may be tenants in common with him, and if so, have the right, until a partition, to the enjoyment of the property. They are not trespassers, and cannot be treated as such by the court. The motion is denied.