Eldert v. Cross Country Railroad

150 N.Y.S. 220 | N.Y. App. Div. | 1914

Per Curiam:

Although the plaintiff alleges possession of the land, the complaint and certificate of title show that the Wyekoff Estate has built several structures on portions of the land, which are actually occupied by numerous persons, who recognize the Wyekoff Estate or Sarah Maria Streeter as their landlord. These persons in no way recognize the plaintiff and claim no interest through him. The statute ^* clearly requires that the plaintiff be in possession of the land as a condition precedent to registering the title. It is unnecessary to make the complaint more definite and certain, inasmuch as it clearly shows that the plaintiff does not occupy the land either directly or indirectly, and that his assertion of possession is denied by the physical fact that there is occupation under an adverse title. The order and interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to plead over within twenty days upon payment of such costs. Jenks, P. J., Burr, Thomas, Carr and Putnam, JJ., concurred. Order and interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to plead over within twenty days upon payment of such costs.

* See Real Prop. Law (Consol. Laws, chap. 60; Laws of 1909, chap. 52), art. 12, as amd. by Laws of 1910, chap. 627; Id. § 878.— [Rep.