Compton v. The Chelsea — 24 N.Y.S. 241

Majority

p. 241

(70 Hun, 361.)

COMPTON v. THE CHELSEA.

(Supreme Court, General Term, First Department.

June 30, 1893.)

Headnote

New Trial as a Matter of Right—Ejectment.

Where, in an action to recover possession of a suite of rooms in an apartment house, the complaint alleges that defendant holds forcible possession of the premises, of which plaintiff had been in possession, and demands treble damages, and it Is doubtful whether such complaint contains allegations necessary to an action of ejectment, but it seems to have been framed on the theory that it was an action of forcible entry and detainer, it is error, after final judgment against plaintiff, to grant him a new trial under Code Civil Proc. § 1525, which entitles the defeated party in ejectment to a new trial, as of right, at any time within three years, on conditions therein specified.

Appeal from special term, Hew York county.

Action by Alexander T. Compton against The Chelsea, a corporation, to recover possession of a suite of rooms or an apartment in an apartment house, in which there was a judgment for defend

p. 242

ant. 13 R. Y. Supp. 722, affirmed by 28 R. E. Rep. 662. A new-trial was granted under Code Civil Proc. § 1525, relating to actions to recover real property, which provides as follows:

“Tlie court, at any time within three years after such a judgment is rendered and the judgment roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs and all damages other than for rents and profits, or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial.”

Defendant appeals.

Reversed.

For prior reports, see 8 R. Y. Supp. 622, and 13 R. Y. Supp. 722.

Argued before VAR BRURT, P. J., and FOLLETT and PARKER, JJ.

Shepard & Prentiss, (W. H. Shepard, of counsel,) for appellant.

A. T. Compton, in pro. per.

It is undoubtedly true that upon the previous apneals this action has been characterized as an action of ejectment, and this probably arose, not from an examination of the pleadings, hut because of the manner in which it was treated by counsel in their presentation of the questions involved to the court; it being: of little moment, in respect to the result desired, as to whether it was an action of ejectment, or an action for forcible entry and detainer. Upon this motion, however, it becomes important to consider the question whether thé' action is really simply one of ejectment. If it is an action which may be an action in ejectment or an action for forcible entry and detainer, it seems to be manifest that the extraordinary privileges which pertain to the action of ejectment, and which do not belong to the action of forcible entry and detainer, cannot be availed of by the plaintiff in case -of defeat,; the familiar rule being that where two causes of -action are united, to one of which, only, peculiar »remedies belong, the right to such remedies in such action is lost. Upon examining the complaint in- the case at bar, it would seem that it is exceedingly doubtful whether the complaint contains such allegations as are proper to an action of ejectment; and it seems, also, to he certain that the pleader, in framing the complaint, did so upon the theory that he was bringing an action for forcible entry and detainer, and for that only, because he alleges that the defendant holds forcible possession of the premises of which the plaintiff had been in possession, and he also demands treble damages, to which he had a right if he established his action of forcible entry and detainer, and to which he would have no right if his action were one of ejectment. We think that the plaintiff should be bound by this plain characterization of his action, and that it must he considered to have been an action for forcible entry and detainer, and that, therefore, the plaintiff was not entitled, as matter of right, to a new trial. It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.