21 Barb. 265 | N.Y. Sup. Ct. | 1855
After much examination and reflection, I am inclined to think that the expression, “the general provisions of the revised statues relating to actions concerning real property,” in § 455 of the code, refers to all the provisions of a general character in chap. 5 of part 3d of those statutes, excepting where the code has otherwise provided. There may.be. I think there are, difficulties in the way of this construction; but none so great as those to be encountered in the attempt to restrict the application of the expression to title 7 of the same chapter of the revised statutes. If we interpret the section of the code referred to, as applying to. that
But it does not follow that the proceeding to recover the. mesne profits must necessarily be in the form of a suggestion according to the revised statutes. The application of their provisions is to actions brought in pursuance of the code. (Lang v. Ropke, 1 Duer, 701.) -The forms of action existing at the .time the code went into effect are abolished, and all rights of action then existing are authorized to be prosecuted in the manner therein provided. (§§ 69, 468.) Now if the right to mesne profits is a right of action, it must be enforced by action,' and not otherwise. No one will deny, I apprehend, that a party is entitled to a remedy for a claim to mesne profits, unlawfully withheld from him ; and if so entitled, that remedy must be by action or special proceeding, (§§ 1, 2 of the code.) The remedy would be an ordinary proceeding in a court -of justice, for the .enforcement of a right, and therefore an action. No one would think of calling it a special proceeding. It never was so regarded before the code. Under the revised statutes the claim was an appendage to the action of ejectment, and was to be recovered by a sort of continuation of that action; and by the
The principal objection, raised upon the argument, to the rulings at the circuit, aside from those already considered, related to the measure of damages adopted by the judge at the trial. The jury were instructed that the plaintiff was entitled to recover one-third of all the proceeds, earnings and tolls of the grist mill received by the defendant between the 16th January, 1849, and the 30th of April, 1850, without making any deduction for the expense or labor of running the mill, and that they should estimate such proceeds, earnings and tolls from the evidence before them, showing the value of the use and occupation of the mill at that season of the year, and allow to the plaintiff, in making up their verdict, one-third of that amount.
The complaint alleges a forcible and unlawful eviction and expulsion of the plaintiff from the grist mill, and an entry thereupon by the defendant, on the 16th day of January, 1849, and that he continued to hold possession thereof and to exclude the plaintiff therefrom until after the expiration of the term mentioned in the lease, which was until and including the 30th day of April, 1850. This allegation is not denied in the' answer, and is therefore to be taken as true.
Under such a state of facts, the plaintiff was- entitled to recover according to the direction at the circuit. The defendant
Upon the whole, I think, there was no error committed at the trial, of which the defendant has a right to complain, and that a new trial should be denied.
Selden, Johnson and Welles, Justices.]