258 A.D. 228 | N.Y. App. Div. | 1939
On its face the amended complaint sets forth facts sufficient to constitute a cause of action. Trespass being an injury to possession, an action may be maintained therefor by plaintiff as a lessee in actual possession even against his landlord. (Domhoff v. Stier, Incorporated, 157 App. Div. 204.)
Moreover, the allegations of the pleading challenged with respect to the continuance of the trespass are sufficient to permit evidence to be adduced on the trial which might warrant equitable relief. In any event the facts alleged in the complaint justify a recovery either at law or in equity. The complaint should not have been dismissed for insufficiency.
The order should be reversed, with twenty dollars costs and disbursements, and the motion denied, with leave to the defendants to answer within twenty days after service of order upon payment of said costs.
Present — Martin, P. J., Glennon, Dore, Cohn and Callahan, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied, with leave to the defendants to answer within twenty days after service of order upon payment of said costs.