Majority
p. 94MATTHEWS vs. KELLY. Twelfth Judicial District Court, June, 1857.
Headnote
Ejectment.A complaint in ejectment, which avers that the plaintiff was seized and possessed of the land in January, and that the defendant ejected him in April, is good.- He need not aver continued possession until April,—it’ will be presumed.
This is an action in ejectment wherein the plaintiff averred in his complaint that he was seized and in possession of the land in Januuary, and that in the month of April following the defendant ousted him. The defendant demurs to the complaint, on the ground that the plaintiff should aver that he was in possession at the time the defendant is alleged to have ousted him.
Burbank, for plaintiff.
Treadwell, for defendant.
The complaint in this action is drawn according to the
p. 95
form approved by the commission of the New York Legislature, appointed to revise the Code of Practice, and which was composed of eminent jurists. We have the same practice in this state, and I am of opinion that this form of a complaint in ejectment is good as having stood the test of examination by men well versed in the law. It is to be presumed if the defendant ejected the plaintiff subsequent to-the time" it is alleged he, the plaintiff, was in possession, that he was continuing in possession all the while. Such seems to be the rational view of this form of complaint.
Demurrer overruled with leave to answer.