17 How. Pr. 56 | N.Y. Sup. Ct. | 1858
Before the code, when actions had .names, this action would have been called an action of ejectment to recover the possession of certain real estate in the city of Hew York. The corporation of the city of Hew York, and about one hundred and sixty of the other defendants jointly demur to the complaint, on the following grounds : First. That it does not contain facts sufficient .to constitute a cause of action. Second. That three sep>arate and distinct causes of action are improperly joined, to wit: (1.) A cause of action by the people for 'improvident and unlawful management of property by the city corporation. (2.) An ejectment by the people, with a claim for damage.. (3.) A like claim by Taylor and Brennan. Thirdly. That said three causes of action are; not separately stated. Fourthly. That there is a defect of parties plaintiffs, by the improper joinder of Taylor and
The defendants, William H. Taylor, and a few others, separately demur to the complaint on the following grounds: First; That the complaint does not state facts sufficient to constitute a cause of action on behalf of the people. Secondly. That there is a defect of parties by the improper joinder of Taylor and Brennan with the people.
As was pertinently said on the argument, “the complaint is essentially a pleading under the code; it is without form.” Two sets of plaintiffs by different attorneys, the people of the state, by Lyman Tremain, their attorney general, and Taylor and Brennan, by Slosson and Hutchins, their attorneys, come into court, and in the same complaint say, that the defendants unlawfully withhold the possession of certain premises in the city of Hew York, either from the people, or from Taylor and Brennan; and with other relief asked for, ask that the defendants “may be adjudged to render possession of the said premises to the plaintiffs, or to such of them as shall be declared entitled thereto; and to pay to them jointly or severally the sum of one hundred thousand dollars for the rents, issues, and profits of said premises whilst the same have been unlawfully withheld from the said plaintiffs.”
The facts stated in the complaint to show a right to the possession, or a right of entry, in either the people, or in Taylor and Brennan; and to a judgment that either the people of the state, or Taylor and Brennan, recover the possession, with damages for the rents, and profits, &c., are substantially as follows: That the people of the state are now, and have been for many years, owners in fee of the premises, and are legally entitled to the rents, issues, and profits thereof since, unless a certain lease thereof to Taylor and Brennan (after-wards particularly described in the complaint, and a copy of which is annexed thereto) be held valid. That the mayor, aldermen &c. of the city of Hew York, have taken possession of the premises, and through their agents rented the same, or
From the wreck of forms effected by the code, and the alternating cases, strange mixture of allegations of fiction and of fact, alternative judgment and confused union of legal and equitable relief presented and asked for by the two sets of plaintiffs in this complaint, I have diligently and patiently tried to pick out one good cause of action, either" in behalf of the people, or of Taylor and Brennan, against either the city corporation, or the tenants, alleged by the complaint to be in the actual occupation of the premises. I say allegations of fiction and of fact in the complaint, for it is evident that the allegation of actual possession by the people of the state, and by Taylor and Brennan, and of actual ouster by the mayor &c.., actually or inferentially alleged in the complaint, were inserted therein, under the mistaken impression countenanced by a few reported cases since the code, that the fictitious (in most cases) allegations of actual possession by the plaintiff on a certain day, and of entry and ouster thereafter by the defendant, retained by the revised statutes out of the old fictions of the action of ejectment, had also been preserved by the code. (See Ensign v. Sherman, 13 How. Pr. R. 35; Warner v
I do not think the theory of the complaint in this case is
It would appear from the complaint, that because § 167 of the code in speaking of causes of action which might be joined, specifies claims to recover real property, “ with or without damages for the withholding thereof, and the rents and profits of the same,” the plaintiffs supposed, that either the people, or Taylor and Brennan could recover in this action, with the possession of the premises, the specific rents paid or payable by the tenants in possession to the city corporation as their landlord—in other words, that by the code, while the action for the possession proceeded on the idea that the defendant was a trespasser, the claims for the rents &c., in the same cause of action, could proceed on the idea that he was a tenant of the plaintiff; and that thus the defendant could be treated as both a tenant and a trespasser in stating the same cause of
But I suppose the code cannot justly be charged with the absurdity the complaint would appear to assume; I suppose that in an action under the code to recover the possession of real estate, the further claim and proceeding allowed in the action to recover the rents and profits, &c. are also allowed against the defendant as a trespasser; in other words, that they are allowed as a substitute for the action of trespass, and. the suggestion on the record, for the mesne profits, before the code. (Tompkins v. White, supra.) In such action for the possession, or in a separate and independent action for themesne profits, against the landlord or tenant, or both jointly, which probably could be brought now as well as before the code, (see case in 6 Hill, supra,) the plaintiff would be entitled to recover as damages what he could prove the premises were reasonably worth annually; and not, as a matter of course, the specific amount of annual rent which the tenant had paid or agreed to pay, or the landlord had received, or agreed to receive. Upon the whole, although I at first thought the complaint in this case was intended to contain a separate and independent cause of action on the part of the people for the rents and profits, prior to the execution of the lease to Taylor and Brennan; yet upon further examination, I think it was not intended to contain any claim for rents, and profits, and damages, for withholding the possession, or otherwise, except as incident to the claim and right to recover the possession. There is, therefore, not more than one cause of action in this complaint.
Are the facts in the complaint sufficient to constitute one cause of action by either the people of the state or by Tay
It is very clear that there is no cause of action by either the people, or by Taylor and Brennan, against the city corporation, for withholding the premises &c., stated in the complaint. The complaint shows, that the corporation does not withhold the possession of the premises; but that the tenants in the actual occupation, the other defendants, do. The complaint showing that the premises in question were actually occupied by the tenants of the city corporation, it shows that the plaintiffs had no right to make the city corporation a defendant in an action to recover the possession of the same. The rule of the revised statutes, that in such a case the tenants in the actual occupation should alone be made defendants, has not been altered by the code. (Champlain and St. Lawrence R. R. Co. v. Valentine, 19 Barb. 484, 493. Van Horne v. Everson, 13 id. 526. Fosgate v. Herkimer Manuf. Co., 9 id. 287. Van Santvoord’s Pl. 2d ed. 176, 7, 8, n. 1. Shaver v. McGraw, 12 Wend. 558. Putnam v. Van Buren, 7 How. Pr. R. 31.) Had the city corporation demurred separately in this case, on the ground that there was no cause of action stated in the complaint against it, I should have sustained the demurrer; but the demurrer being a joint demurrer by the corporation and most of the other defendants, the demurrer must be overruled, if the complaint shows a cause of action by the people, or by Taylor and Brennan, against such other defendants. (Eldridge v. Bell, 12 How. 549. Philips v. Hagadon, Id. 17. Brownson v. Gifford, 8. id. 392. Van Santvoord’s Pl. 671.) We have arrived, then, at this question on these demurrers: does the complaint show a cause of action by either the people of the state, or Taylor and Brennan, against the defendants, who are alleged to be in the actual occupation of the premises as tenants of the city corporation ? On the theory which evi
If it were the law, as the plaintiffs appear to have assumed, that a conveyance by the people of the state, of lands held adversely, is void, I should not be able to find any cause of action whatever in the complaint—for the complaint, while it alleges title in the people, the execution of the lease to Taylor and Brennan, and their right to the possession without qualification or condition, also contains other allegations of fact, from which it would appear that when the lease to Taylor and Brennan was executed, the premises were actually held and occupied by the tenants of the city, claiming under title adverse to that of the state; and these contradictory allegations in effect—in stating one and the same cause of action; the first showing a right in Taylor and Brennan to bring the action ; and the second showing the lease to Taylor and Brennan void, and therefore, showing a right in the people of the
It follows that the lease to Taylor and Brennan was valid, • and gave them a right of entry, although the premises at the time were actually held and occupied under a title hostile to the title of the state; and having the right of entry, Taylor and Brennan could bring their action to recover the possession of the same, and the rents and profits since the execution of the lease as damages, &c. The complaint contains this cause of action on the part of Taylor and Brennan alone, against the defendants, the tenants in the actual occupation of the premises, alone; but this is sufficient to save the complaint on this joint demurrer by the city corporation, and the other defendants. The plaintiffs must, therefore, have judgment on the demurrer, with liberty to the defendants, or such of them as have not answered, to answer in twenty days on payment of costs.
In arriving at this conclusion, I have assumed that it sufficiently appears that the commissioners of the land office were authorized to execute the lease to Taylor and Brennan. By Laws of 1819, page 300, § 3, the commissioners of the land office may lease for a term not exceeding one year, any lands belonging to the state, having improvements on them. It is not alleged in the complaint, that the premises leased to Tay
Sutherland, Justice,]