12 Wend. 558 | N.Y. Sup. Ct. | 1834
By the Court,
The question of the defendant’s possession of the premises, at the commencement of the suit, was properly submitted by the judge to the jury, and his charge upon that point was correct. 'He instructed them, that if they were satisfied, from the testimony, that the defendant was in the actual possession of the premises in question, at the commencement of this suit, then the plaintiffs would be entitled to their verdict; but if, on the contrary, they should be of the opinion that Mrs. Peck, the mother of the defendant, had the sole possession and control of the premises and that the defendant labored there in the capacity of a hired man or servant, that then they should find for the defendant. The revised statutes, in relation the action of ejectment, provide, 2 R. S. 304, § 14, “ That if the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the declaration ; if they are not so occupied, the action must be brought against
Where the premises are actually occupiedandpossessed, even by a servant, claiming no beneficial interest in them, but laboring merely for his employer, the action must be brought against the servant, because he is the actual occupant; but if he is merely sent by his master to work upon the premises, they not being occupied, it is the master, and not the servant, that exercises acts of ownership over them, and against whom the action must be brought. When the judge instructed the jury that if the defendant labored upon the premises in the capacity of a hired man or servant, the plaintiff could not recover, it was in connection with the further fact that they should be of the opinion that Mrs. Peck, the defendant’s mother, had the sole possession and control of the premises, and that they were not actually occupied by the defendant. He did not lay down the abstract proposition, that this action could not be maintained against a hired man or servant. The case of Doe v. Steadling, 2 Stark. R. 187, 3 Com. Law R. 307, S. C., cited and relied upon by the plaintiff’s counsel, «simply decides, that
The premises, it will be recollected, belonged to Mrs. Peck, the mother of the defendant, for life, or during widowhood; remainder to the defendant in fee. The circuit judge charged the jury, that this remainder, during the continuance of the particular estate, was not such an interest as would authorize an action of ejectment against the remainder-man, not in possession. In this opinion he was clearly correct. The revised statutes, 2 R. S. 304, § 4, when they say, if the premises are not occupied, the action must be brought against some person exercising acts of ownership thereon, or claiming title thereto, or some interest therein, do not mean to give to the plaintiff the right to make either of these description of persons defendants in ejectment at his election. But he must make the actual occupant defendant, if there be any; if not, then the per
The action of dower (before that action was abolished by the revised statutes) could only be brought against the tenant of the freehold. Harder v. Grant, 3 Wendell, 340. Dower is now to be recovered in an action of ejectment. 2 R. S. 304, § 10. And it may well be doubted whether the principle of the action of dower does not control the action in its present form, and whether ejectment in such a case will lie against any other person than the tenant of the freehold. It is not necessary, however, to be decided in this cause, and I abstain from the expression of any opinion upon the subject. '
New trial denied.