§ 817 — Action for waste against joint tenant or tenant in common

New York § 817

• Jurisdiction: New York
• Law RPA: Real Property Actions & Proceedings
• Art. 8: Waste and Other Actions and Rights of Action For Injury to Real Property

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§ 817. Action for waste against joint tenant or tenant in common. 1.\nAn action for waste may also be maintained by a joint tenant or tenant\nin common against his co-tenant who commits waste upon the real property\nheld in joint tenancy or in common. If the plaintiff recovers therein he\nis entitled, at his election, either to a final judgment for\ncompensatory damages or to have partition of the property as prescribed\nin subdivisions 2 and 3 of this section.\n 2. Where the plaintiff elects to have partition, if the pleadings,\nverdict, report, or decision do not determine the rights and interests\nof the several parties in the property so held in joint tenancy or in\ncommon, the court must ascertain them, by a reference or otherwise. If\nit appears that there are persons, not parties to the action, who must\nhave been made parties to an action for partition of the property, they\nmust be brought in by supplemental summons and, if necessary,\nsupplemental pleadings must be made. When the rights and interests of\nall the parties are ascertained, an interlocutory judgment for the\npartition or sale of the property must be rendered and the subsequent\nproceedings therein must be the same as in an action for partition,\nexcept as otherwise prescribed in subdivision 3.\n 3. The plaintiff may elect to take final judgment for the damages\nawarded to him, or that, in making the partition, or in dividing the\nproceeds of a sale, so much of the share of the defendant in the real\nproperty, or the proceeds thereof, as will be sufficient to compensate\nthe plaintiff for his damages, and the costs of the action, other than\nthe expenses of making the partition or sale, be laid off or paid, as\nthe case may be, to the plaintiff. The residue of the property or\nproceeds, not laid off or distributed to the plaintiff or the defendant,\nmust be laid off or paid to the persons entitled thereto, according to\ntheir respective rights and interests.\n