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Halsey v. Gerdes

17 Abb. N. Cas. 395 Court N. Y. Supreme Court, First District; Special Term, English

Delivered by Barrett, J.

Contents

Majority

p. 395
HALSEY v. GERDES.
N. Y. Supreme Court, First District; Special Term,
May, 1886.

Headnote

Ejectment.—Pleading ; complaint
A complaint in ejectment alleging that the plaintiff is seized in fee of the premises in question, that defendants are in possession thereof and withhold the same from the plaintiff, is sufficient on demurrer. The averment of seizin in fee is equivalent to an averment of the
p. 396
right to immediate possession, and therefore the defendant’s possession and withholding are necessarily wrongful, and an allegation to that effect is not required. (
Moores v. Lehman (52 Super. Ct. [J. & S.] 283), to the contrary, disapproved.[1]
Demurrer to complaint.
Fanny Halsey sued John F. Gerdes in ejectment for certain premises in the city of New York. .
The complaint alleged ‘1 That the plaintiff is seized in fee of the following described premises (describing them). That the defendants are in possession thereof and withhold the same from her,” and demanded judgment: I. For the possession of said premises. II. For the sum of $1,000, plaintiff’s damages by the withholding of the same.”
S. F. Simpson and John Townshend, for defendants, demurring.
Tierney & Halsey, for the plaintiff, opposed.

—The case upon which defendants rely (Moores v. Lehman, 52 Super. CL [J. & S.] 283), is not supported by the authorities. It is well settled that an allegation of “seizin in fee,” followed by an averment of an unlawful withholding, is sufficient on .general demurrer (Ensign v. Sherman, 14 How. Pr. 439 ; Sanders v. Leavy, 16 How. Pr. 308 ; Walter v. Lockwood, 23 Barb. 228 ). Here the word “ unlawfully ” is omitted, but it may be treated as a conclusion of law or as surplusage (Payne v. Treadwell, 16 Cal. 220 ). The averment of seizin in fee is equivalent to an averment of the right to immediate possession (1 Washb. Real Prop. 58; Jenkins n. Fahey, 73 N. Y. 355 , 361, and cases there cited ; Bouvier's Law Dict.; Abb.

p. 397
Law Dict.). The plaintiff being entitled to immediate possession, as implied from the seizin in fee, the defendant’s possession and withholding are necessarily wrongful. If otherwise, they must set up the facts from which they claim the right to withhold and retain possession.

The demurrer must be overruled with costs, and with leave to defendants to answer within twenty days, upon payment of such costs.

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