| NY | Oct 27, 1893
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *541 In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and, in a proper case, recover damages for withholding the property. (Code, §§ 1496, 484, sub. 5). Under § 1669, if the plaintiff was disseized, and kept out of possession by force, he may have treble damages in an action therefor against the wrongdoer. Where the plaintiff has title, ejectment will lie for a forcible entry and detainer, and in such a case, treble damages may be demanded and recovered, if he establishes that the disseizin was actually effected vi et armis. It is true that by §§ 2233-6, a summary remedy is given, where the unlawful entry and detention is the result of physical force, by a proceeding in a District Court, but the plaintiff is not restricted to such a course any more than in a case where a tenant in possession refuses to surrender upon the expiration of his tenancy. He may, if he so elects, resort to his action of ejectment, and in the same suit recover his damages, which may be trebled, if the wrongful entry and withholding are shown to be of the character described in § 1669. We are, therefore, of the opinion that there are not two inconsistent causes of action stated in the complaint. It is true that the plaintiff alleges that the defendant's unlawful entry was by force, but that does not change the nature of the action; it merely characterizes one element of it, and supports the plaintiff's claim for increased damages on account of it; but the plaintiff may still insist upon the recovery of the possession, if his pleading is supported by proofs, and of such damages as he may be shown to be entitled to. It is also true that he might have brought a separate action simply for the recovery of the *542 treble damages which are authorized by § 1669, and that in such an action he need not prove his right to possession, but only that he was peaceably in possession and had been forcibly ejected. But he is not precluded from recovering such damages in case he has the right to the possession and seeks to recover the property itself. If he establishes his title, he may have such damages for the wrongful entry and detainer of the defendant as the law permits, upon the facts which may be proven and found at the trial.
The complaint, we think, contains all the necessary averments of a cause of action in ejectment; it has been regarded as an action of that character upon both of the former trials, and the case was thus brought within the provisions of § 1525, which does not permit of the exercise of any discretion when application is made for a new trial, and the statutory conditions have been complied with.
The order of the General Term must be reversed and that of the Special Term affirmed, with costs in this court, and at General Term.
All concur, except PECKHAM and GRAY, JJ., dissenting.
Ordered accordingly. *543