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Neale v. Walter

128 A.D. 827 Court Second Department, Decision date 1908-11-20 English

Delivered by *828 Gaynor, J.:

Contents

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p. 827
Isabella Neale, Appellant, v. John Walter, Respondent.
Second Department,
November 20, 1908.

Headnote

Real property — determination of adverse claim — constructive possession —pleading.
Constructive possession of lands for more than one year is sufficient for the maintenance of an action, brought under sections 1638 and 1639 of the Code of Civil Procedure, to determine an adverse claim.
Hence, an allegation that the plaintiff has been for more than one year “ seized” and ” possessed ” of the lands is sufficient, although it be also alleged that the land is vacant and not actually occupied.”
Appeal by the plaintiff, Isabella Neale, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 28th day of September, 1908, dismissing the complaint.
No judgment was entered, but no objection is taken to the appeal from the order.
Frederick W. Block, for the appellant.
Max Schleimer, for the respondent.

This is an action under sections 1638 and 1639 of the Codé of Civil Procedure to determiné an adverse claim to real estate. The ■ complaint was dismissed at .the trial for not stating facts sufficient, ' in that there is no allegation that the plaintiff has been in possession ' of the land for one year. The allegation is that the plaintiff is and " has been for more than one year “ seized ” and “ possessed ” of the land; but this is followed by an allegation that the land is “ vacant and not actually occupied ”. Mevertheless the complaint is good, for possession is alleged, and constructive possession suffices, The said statute at first required “ actual. possession ” ; but-by amendment in 1891 (Chap. 210, L. of 1891)- the.word “actual” was omitted. The phrase was used in the opposite sense of “ possession in law, or constructive possession ” (Churchill v. Onderdonk, 59 N. Y. 134 ). The illustration in Clason v. Stewart ( 23 Misc. Rep. 177 ) of constructive possession, in reference to this change in the statute, viz., “showing that a constructive possession, as through tenants, is sufficient ”, was inadvertent, for possession through á tenant would be actual possession.

, The order should be reversed;

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.

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