Rowland v. Miller — 44 N.Y. St. Rep. 826

Majority

p. 826

Mary Eliza Rowland, App’lt, v. Charles Miller et al. , Resp’ts.

(New York Superior Court, General Term,

Filed March 14, 1892.)

Headnote

Ejectment—Description—Demurrer.

The description of the premises in controversy in a complaint in ejectment was as follows : “ Commencing at a point in the easterly line of said premises, three and one-eightli inches southerly froin the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.” Held, that this was the description of nothing but a straight line ; that there was nothing to make more definite and certain, and that a demurrer was proper.

Appeal from an order of the special term, sustaining a demurrer, and from the judgment entered thereon.

Lockwood & Hill, for app’lt; Burrill, Zabriskie & Burrill, for resp’ts.

This is an action for ejectment. The description of the property in suit is set forth in the complaint as follows: “ Commencing at a point in the easterly Jine of said premises, three and one-eighth inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.”

This is a description of a straight line, and nothing else.

Section 1511 of the Code of Civil Procedure provides that “the complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.”

As it is impossible to deliver possession of a straight line, the complaint clearly does not set forth facts sufficient to constitute a cause of action; and, therefore, the demurrer must be sustained. Code, § 488.

The complaint does not describe any property at all; and there is, therefore, nothing of which a bill of particulars can be given and nothing to be made more definite and certain by .motion, under § 546 of the Code; it consequently follows that defendants’ proper course was to demur. See Budd v. Bingham, 18 Barb., 494 .

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., and Dcjgro, J., concur.