Deering v. Reilly
| Decision Date | 14 May 1901 |
| Citation | 60 N.E. 447,167 N.Y. 184 |
| Parties | DEERING v. REILLY et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, First department.
Action by James A. Deering against William J. Reilly and others. From an order of the appellate division (56 N. Y. Supp. 704) sustaining plaintiff's exceptions ordered to be heard in the first instance, and granting a new trial, defendants appeal. Affirmed.
William P. Maloney, for appellants.
Clarence L. Barber, for respondent.
This is an action in ejectment, wherein the plaintiff, alleging briefly in his complaint that he is lawfully entitled to, and seised of, one undivided third interest in a piece of land in the city of New York, particularly therein described, between Manhattan street on the north and 127th street on the south, and formerly forming the easterly half of the Bloomingdale road, of which the defendants are in possession, demands a judgment establishing his title and his right to the possession of the same, with damages for the withholding thereof. The defendants answered by a general denial, and upon the trial, by motions at the opening and at the close of the plaintiff's case, asked that the complaint be dismissed upon various grounds. The trial court granted the motion upon the plaintiff's case, and ordered that his exceptions should be heard, in the first instance, at the appellate division, where they were sustained, and a new trial was directed. The defendants have appealed to this court, and they insist upon the inability of the plaintiff to recover, either upon his pleading or upon his proofs. The questions raised have been, with more or less elaborateness, considered and well determined in the opinion delivered at the appellate division by Mr. Justice O'Brien, and the utmost which may be demanded of us, in any further expression of opinion, is to review briefly the more important of the questions.
In the first place, it is urged that it was ground for a dismissal of the complaint that the plaintiff had not joined his co-tenants as parties to the action, and that his pleading does not set forth a proper cause of action in ejectment. On this head of their contention, they reason from a construction of section 1500 of the Code of Civil Procedure, which is as follows: ‘Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an action, to recover his or their undivided shares in the property, in any case where such an action might be maintained by all.’ They say that under its provisions the plaintiff was required to allege and to prove that this was a case in which he and all of his co-tenants might join together in maintaining the action; that this the complaint did not allege sufficiently within its requirements; and that the proofs not only fell short of making out a case for relief under the Code provision, but they show affirmatively that the plaintiff and his predecessors in the title had only a paper title, and never the possession. However appropriate the question whether upon the proofs a prima facie case was made out for the relief asked, the appropriateness of the question upon the plaintiff's pleading is not evident. It conformed sufficiently to the Code requirements that the complaint shall contain a plain and concise statement of the facts constituting the cause of action, the judgment to which the plaintiff supposes himself entitled, and the other data for the framework of the complaint. Code Civ. Proc. § 481. Section 1500 of the Code, which creates what difficulty there may be in this case, declares the substantive law upon the subject of a person's right to recover the possession of an undivided share in real property to which he is lawfully entitled. It does not purport to prescribe the form of the pleading in such an action, but to provide in what case one or more tenants holding jointly or in common may maintain the action; that is, what showing of title will entitle him or them to a judgment of possession. The historical discussion of this section in the opinion below clearly justifies the conclusion stated, that it was intended in its enactment to serve the purpose of reconciling an apparent conflict in the earlier decisions, and that it was not designed, and it should not be construed, to impose upon the plaintiff in ejectment a burden in the enforcement of his right which did not rest upon him previously. See revisor's note to section 1500, enacted after Hasbrouck v. Bunce, 62 N. Y. 475. It does not require that joint tenants, or tenants in common, must unite in the action, and its purpose is fulfilled when proof is made that the tenant suing has a legal title, entitling him to the possession, and that those having title to the other undivided interests are, upon the face of the record, entitled to maintain a similar action. This seems to be especially true when those proceeded against, in the effort to recover the possession of lands, set up no adverse title, and are, or appear from the record to be, intruders or trespassers upon the title. The rule that a plaintiff in ejectment must recover upon the strength of his own title, and not on the weakness of his adversary's, has its proper application where title is asserted against title, but not to a case where the defendants, making no claim of title, object that the plaintiff has not proved a perfect title against those who might claim adversely. The plaintiff is not bound to anticipate all that might be urged by others holding by adverse claim of title. If upon his proofs it appears, prima facie, that he has title to an undivided interest in premises, possession of which is withheld by the defendants, his right to maintain the action is sufficiently established upon the case.
The plaintiff's proofs showed that originally the land was a part of a tract or farm owned by William Molenor. While in his ownership, Bloomingdale road, as a result of proceedings taken by the common council of the city of New York, was continued and extended through his land. He conveyed a large part of his property to Jacob Schieffelin, Thomas Buckley, and John B. Lawrence, and they, by this and...
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