the action, and staying all proceedings therein, on the part of the plaintiff, until the evidence is produced. Id., 19. 1514. Evidence of authority.-Any written request of the plaintiff or his agent to the plaintiff's attorney, to commence the action, or any written recognition of his authority so to do, verified by the affidavit of the attorney, or any other competent witness, is sufficient presumptive evidence of such authority. Id., ? 20. § 1515. When ouster to be proved.-- Where the action is brought by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually custed him, or did some other act, amounting to a total denial of his right. Id., 27; Edwards v. Bishop, 4 N. Y. 61; Clapp v. Bromagen, 9 Cow. 556, 563; Valentine . Northrup, 12 Wend. 495; Sigler v. Van Riper, 10 Wend. 414: Gillette v. Stanley, I Hill, 121; Sharp v. Ingraham, 4 id. 116; Church of North Greig v. Johnson, 66 Barb. 119. 1516. Rule when there are distinct occupants.Where there are two or more defendants, and it is alleged, in the answer of either of them, that he occupies in severalty, or that he and one or more of his co-defend ants occupy jointly, one or more distinct parcels, and that one or more other defendants possess other parcels, in severalty or jointly, the court may, in its discretisupon the application of the plaintiff, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary. If the action is not so divided, and it appears, upon the trial, that the allegation is true, the plaintiff must, before the evidence is closed, elect against which defendant or defendants he will proceed; and a judgment dis missing the complaint must thereupon be rendered, in favor of the other defendants. Id., 29, in substance: Dillaye v. Wilson, 43 Barb. 263; Fosgate v. Her kimer M. and H. Co., 12, N. Y. 580; Rogers v. Arthur, 21 Wend. 598. § 1517. The last section qualified.--The last section does not apply to a case, where two or more defendants occupy different apartments in a building. In such a case, in an action to recover the building and its curti lage, the plaintiff is entitled to judgment jointly against all the defendants who are liable to him. New. Pearce v. Colden, 8 Barb. 522; Pearce v. Ferris, 10 N. Y. 280. §1518. When plaintiff may recover against one defendant subject to rights of others.-Section 1516 of this act does not apply to a case, where one or more defendants, answering as therein prescribed, hold under another defendant, and the plaintiff elects to proceed against the latter, subject to the rights and interests of the former. In such a case, the proceedings against the defendant so answering must be stayed until final judg ment; and if the plaintiff recovers final judgment against the defendant, under whom they hold, the judg ment operates as a transfer to the plaintiff of that de fendant's right, title, and interest, and the costs of the defendant or defendants so answering are in the discretion of the court. New. § 1519. Verdict, etc., to state nature of plaintiff's estate. A verdict, report, or decision, in favor of the plaintiff, in an action specified in this article, must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate is less than a fee. Id., 30, subd. 7; DeWitt v. Village of Ithaca, 15 Hun, 568; Rogers v. Sinsheimer, 50 N. Y. 649; Olendorf v. Cook, 1 Lans. 37, 45; see Harrison and Darrival v. Stevens, 12 Wend. 171. §1520. Expiration of plaintiff's title before trial.— If the right or title of the plaintiff, in an action specified in this article, expires after the commencement of the action, but before the trial, and he would have been entitled to recover, but for the expiration, the verdict, report, or decision must be rendered according to the fact; and the plaintiff is entitled to judgment for his damages for the withholding of the property, to the time when his right or title so expired. 2 R. S. 308, 31 (2 Edm. 316); Van Rensselaer v. Owen, 48 Barb. 61; 33 How. Pr. 12, Woodhull v. Rosenthal, 61 N. Y. 383; s. c., 5 Albany.L. J. ; Jackson v. Davenport, .18 Johns. 295; Van Rensselaer v. Owen, 48 Barb. 61. § 1521. Abatement of action. The provisions of title fourth of chapter eighth of this act, as applied to an action specified in this article, are subject to the qualifi cation that the court may, in its discretion, proceed as prescribed either in that title or in the next two sections. Substituted for id., 32, and Laws of 1865; see Moseley v. Mosely, 11 Abb. Pr. 105; Putnam v. Van Buren, 7 How. Pr. 31; Hasbrouck v. Bunce, 62 N. Y. 475. 1522. Action to be divided, when different per sons succeed to different parcels.-Where, upon the death of a party, different persons succeed to the decedent's title to, or interest in, different distinct parcels of the property sought to be recovered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary; and that the successor to the title or in. terest of the decedent, to or in each distinct parcel, be substituted as plaintiff or defendant, as the case requires, in an action relating thereto. New. § 1523. Id.; when different persons succeed to real property and to rents and profits.-Where the plaintiff seeks to recover damages for withholding the prop erty, and, upon the death of a party, different persons succeed to the decedent's right to or liability for those damages, and to his title to or interest in the property, the court may, upon motion made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, with the rents and profits thereof accruing after the decedent's death, the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plaintiff or defendant therein, as the case requires. Substituted for 2 R. S. 311, 354 (2 Edm. 320); see Hotchkiss v. Auburn & Rochester R. R. Co., 36 Barb. 600. § 1524. Effect of judgment rendered after trial, of issue of fact.--Except in a case where it is otherwise expressly prescribed in this act, a final judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through, or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in, the proper county clerk's office, as prescribed in article ninth of this title. 2 R. S. 309, 36 (2 Edm. 317), as amended by Laws 1862, ch. 485; Bates v. Stearns, 23 Wend. 482; Bay v. Gage, 36 Barb. 447; Beebe v. Elliott, 4 id. 458; Briggs v. Wells, 12 id. 567. 1525. New trial may be granted.-The court, at any time within three years after such a judgment is rendered, and the judgment-roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs, and all damages, other than for rents and profits or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court upon a like application, made within two years after the second final judgment is rendered, and the judgment-roll is filed, may make an order vacating the second judgment, and granting a new trial, upon the like terms, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials shall be granted under this section. Id., 37, amended by Laws 1878, ch. 292; Carleton v. Darcy, 75 N. Y: 375; Shaw . McMaren, 2 Hill, 417; Harris v. Waite, 54 How. Pr. 113: Palmer v. Coe, 5 Wend. 101; Chautauqua Co. Bank . White, 23 N. Y. 347; Brown v. Crim, 1 Den. 665; Bellinger v. Martindale, 8 How. Pr. 113; Shumway v. Shumway, 42 N. Y. 143; Cooke v. Passage, 4 How. Pr. 360; Rogers v. Wing, 5id. 50: Christie v. Bloomingdale, 18 id. 12; Lang v. Ropke, 1 Duer, 701; Evans v. Millard, 16 N. Y. 619; Bucher v. Carroll, 19 Hun, 618. § 1526. Effect of judgment by default, etc.— A final judgment for the plaintiff, rendered in an action speci fied in this article, otherwise than upon the trial of an issue of fact, is, after the expiration of three years from the filing of the judgment-roll, conclusive upon the defendant, and every person claiming from, through or under him, by title accruing, either after the judgmentroll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title. But within five years after the judgment-roll is filed, the court, upon the application of the defendant, his heir, devisee, or assignee, and upon payment of all costs and damages awarded to the plaintiff, must make an order vacating the judgment, and granting a new trial, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and estab lished; but not otherwise. Id.. 38; Sheriden v. Linden, 21 Alb. L. J. 475 8. c. 10 N. Y. Weekly Dig. 258; Lang v. Ropke, 1 Duer, 701; Christie v. Bloomingdale, 18 How. Pr. 12; see, also, Sheriden v. Andrews, 49 N. Y. 478. § 1527. Id.; exception in case of disability.-In a case specified in the last section, if the defendant is, at the time of the filing of the judgment-roll, either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the three years, specified in the last section; but such a defendant, his heir, devisee, or assignee, may commence an action for the recovery of the real property claimed, at any time within three years after the disability ceases; but not afterwards. Id., 39; see, also, 22 375, 396 and 1291, ante. § 1528. The last three sections qualified.--The last three sections are not applicable, where the action is founded upon an allegation of rent in arrear; or in a case to which section 445 of this act is applicable. New. Christie v. Bloomingdale, 18 How. Pr. 12; see, also, 22 445 and 1508, ante. 1529. Possession not to be changed by vacating of judgment, except, etc.-Where the plaintiff has taken possession of real property by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment, except as prescribed in section 1525 or section 1526 of this act. In such a case, if the defendant thereafter recovers final judgment in the action, it must award to him the restitution of the pos session of the property; and he may have an execution thereupon for the delivery of the possession to him, as if he was plaintiff. Id., 41, amended; Huntington v. Forkson, 7 II, 195; Olendorf v. Cook, I Lans. 37; Danby v. Brown, 43 How. Pr. 17; People v. Cooper, 20 Hun, 486. § 1530. Evidence on new trial.-Upon a new trial, |