FULLERTON, J.

It must be conceded, that, before the Code, the rule in this State was that tenants in common must join in actions to recover for injuries to the realty. ( Austin v. Hall, 13 Johns. 286; Low v. Mumford, 14 id. 426; Decker v. Livingston, 15 id. 479; Hill v. Gibbs, 5 Hill, 56, note.)

This rule has not been altered by the Code. The only change it has made is in the mode of taking advantage of a defect of parties. Under the old system the only remedy was by plea in abatement, and if that were not interposed, a tenant in common could still recover. The defendant could show on the trial that there were others interested in the claim, not by way of bar, but to limit the plaintiff's recovery to his aliquot part of the damages sustained. Now the defendant may have his remedy by demurrer, if the defect appear on the face of the complaint, or by answer if it does not.

The only question in this case, as I view it, is whether, when the defect of parties appears on the face of the complaint, the defendant can omit to demur, and take advantage of it by answer, and this point seems to be well settled by authority. ( Denison v. Denison, 9 How. Pr. 247; Osgood v. Whittlesey, 10 Abb. Pr. 134; Ingraham v. Baldwin, 12 Barb. 18; Baggott v. Boulger, 2 Duer, 169; Zabriskie v. Smith, 3 Kern. 336.)

In this last case, Judge DENIO, in discussing the question, remarks: "A dilatory defense, which a plea in abatement is considered to be, is not favored, but he that is entitled to avail himself of it must interpose it promptly according to the established forms. Here the facts were fully disclosed by the complaint, and the defendant could have demurred. The authority to object by way of answer is, in terms, limited to cases where the fact does not appear in the prior pleading. When, therefore, the last section (148), which I have quoted, declares that if the objection is not taken by demurrer or answer, it shall be considered as waived, it means that if it be not taken by demurrer when that mode is proper, or by answer in cases where that is the appropriate method, it is waived. This construction will give full effect to all the language, and will, besides, compel the defendant to take his ground with the promptness inculcated by the rule of pleading to which I have referred."

This question was again considered in this court in Merritt v. Walsh ( 32 N.Y. 690), and Zabriskie v. Smith was there cited as settling the rule. The question is, therefore, no longer open for consideration. Where a demurrer can be interposed for a defect of parties, the defendant is confined to that remedy alone, and it is only where evidence is necessary to make the defect apparent, that an answer to that point is permitted.

The complaint in this action distinctly alleges that each of the plaintiffs is the owner in fee of a specified fractional part of the lands on which the trespasses were committed, the sum of which parts is much less than the whole of the lands; thereby admitting that there were other parties jointly interested with the plaintiffs in the claim sought to be recovered, and thus bringing the case directly within the rule established.

The defendants were therefore right, in the first instance, in interposing a demurrer to the complaint, and when it was overruled, they should have corrected the error by an appeal. Having omitted to do so, they have acquiesced in the judgment, and are concluded by it. If the merits of that decision were before us in this controversy, we should correct the error, but they are not, and the case stands precisely as if no demurrer had ever been interposed. That being so, and holding that the question could not be raised by answer, the plaintiffs were at liberty to recover their aliquot proportion of the damage proved on the trial.

The judgment of the General and Special Terms should be reversed, and a new trial granted, costs to abide the event.

All the judges concurring, except PORTER and BOCKES, JJ., not voting,

Judgment reversed.