§ 817 SECTION 817 Action for waste against joint tenant or tenant in common
RPAPL § 817
1.An action for waste may also be maintained by a joint tenant or tenant in common against his co-tenant who commits waste upon the real property held in joint tenancy or in common. If the plaintiff recovers therein he is entitled, at his election, either to a final judgment for compensatory damages or to have partition of the property as prescribed in subdivisions 2 and 3 of this section.
2.Where the plaintiff elects to have partition, 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 partition of the property, they must be brought in by 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 therein must be the same as in an action for partition, except as otherwise prescribed in subdivision 3.
3.The plaintiff may elect to take final judgment for the 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 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 distributed to the plaintiff or the defendant, must be laid off or paid to the persons entitled thereto, according to their respective rights and interests.
