2 Barb. 330 | N.Y. Sup. Ct. | 1848
Before the revised statutes, a plaintiff in an action of ejectment was not obliged to describe the premises which he claimed, more particularly, in his declaration, than by alleging that one hundred acres of meadow, one hundred acres of pasture land, &c. in the town of Knox, in the county of Saratoga, were demised, for ten or other number of years. The demise being admitted, all the title which the lessor need show, was such as would warrant the demise stated in the declaration for any divided or undivided part of the premises claimed. The plaintiff could not be nonsuited, if he showed a title to any part of the demised premises. But since the revised statutes, neither the practice at the circuits, nor the ruling of the supreme court, has been uniform. In the case of Van Alstine v. Spraker, (13 Wend. 578,) the plaintiff claimed the whole in fee. On the trial, he showed a title to an undivided part, and for life. The judge, at the circuit, nonsuited the plaintiff, on account of the variance between the declaration and the evidence. The supreme court set aside the nonsuit, on the ground that the plaintiff had an absolute right to a verdict, for the es
Thus it will be seen that the obiter dictum of Chief Justice Nelson, in the case of Holmes v. Seely, is the only authority for saying that a plaintiff who declares for the whole cannot be allowed to recover an undivided part. But the court are of opinion that the judgment of the court in the case of Van Alstyne v. Spraker is fully warranted by the revised statutes, and by the well settled rules of law, applicable to actions of ejectment. That if a plaintiff on the trial of an action of
See Truax v. Thorn, ante, p. 156, S. P.