Sarconi v. De Falo — 67 N.Y.S. 923

Majority

p. 923

SARCONI v. DE FALO et al.

(Supreme Court, Appellate Term.

January 2, 1901.)

Headnote

Forcible Entry—Petition—Possession—Allegation.

Where, in forcible entry, the petitioner alleged actual possession and a forcible entry and holding, but there was no evidence of actual possession of the premises by plaintiff, and no allegation of constructive possession, a judgment in favor of defendant was proper.

Appeal from municipal court, borough of Manhattan, Second district.

Action by Nicola Sarconi against Tomasso De Falo and others. From a judgment in favor of defendants, plaintiff appeals.

Affirmed.

Argued before TRUAX, P. J., and SCOTT and DUG-BO, JJ.

p. 924

C. L. Hoffman, for appellant.

J. Palmier!, for respondents.

The petitioner alleged actual possession and a forcible entry, and, although there is in the petition an allegation of a forcible holding out, there is none of a constructive possession. It may be that, if the petition had alleged the assignment as of a date prior to the alleged holding out, liberal construction might warrant a conclusion that the petition sufficiently presented an allegation of constructive possession; but as to the time of the assignment the petition is not specific, beyond that it was after May 6,1899.

There was no evidence of actual possession, and so the final order was right, and is affirmed, with costs.