Palmer v. Van Deusen — 122 A.D. 282

Majority

p. 282

Nicholas Palmer and Jane E. Palmer, Appellants, v. George W. Van Deusen, Respondent.

Third Department,

November 13, 1907.

Headnote

Pleading — action to enjoin obstruction of easement — when description of lands sufficient — remedy when description indefinite.

In an action to enjoin the obstruction of a right of way appurtenant to lands, a complaint which describes the lands to which the way was appurtenant as “Palmer one hundred acre lot,’’is sufficient on a motion to dismiss at trial. Indefiniteness in the description should have been cured by a motion to make the complaint more definite and certain.

Appeal by the plaintiffs, Nicholas Palmer and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of'the clerk of the county of Saratoga on the 23d day of July, 1907, upon the dismissal of the complaint at the opening of .case on a trial at the Saratoga Special Term. ... •.

James H. Bain, for the appellants.

Edgar T. Brackett [ William S.- Ostrander of counsel], for the respondent.

In this action to enjoin defendant from obstructing a right of way across'liis premises, upon the trial the plaintiffs stated that they “ did not claim any public right of way, nor any personal, private right of way on behalf of the plaintiffs, but only for a right of way appurtenant to the plaintiffs’ lands.” Thereupon the court held the com. plaint insufficient, for the reason that it did not describe the lands to which it was claimed the right of "way was appurtenant. In all other respects the complaint is concededly sufficient. .

The complaint showed that the right of way described came up to and bordered upon the plaintiffs’ “ Palmer one-liundred-acre lot,” and that it was a convenient and necessary means of communication between and across the lands of the plaintiffs in said town, and for that reason was a suitable appurtenance to said lands. The naming of the plaintiffs’ Palmer one-hundred-acre lot, and their other lauds in said town, is a sufficient description of the lands to which .said

p. 283

way is appurtenant to enable the plaintiffs to maintain their action when the objection is raised for the first time upon the trial. The fact that a complaint is indefinite and uncertain does not justify its dismissal. The Code of Civil Procedure (§ 546) has provided a remedy to cure such, a defect.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.