Sanders v. Parshall — 51 N.Y. St. Rep. 551

Majority

p. 551

Joshua C. Sanders, App’lt, v. James L. Parshall, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Pleading — Ejectment—Cloud on title.

A complaint alleging that plaintiff is the owner of land; that defendant claims an interest therein by virtue of a tax sale, which is in tact invalid, though valid in appearance, but dues not allege that defendant is in possession or that the land is vacant, is not sufficient as a complaint in ejectment, though it demands judgment that defendant surrender possession to plaintiff; but states a good cause of action to remove a cloud on title.

Appeal from judgment dismissing complaint.

J. C. Sanders (George H. Pettit, of counsel), for app’lt; W. Stebbins Smith (Jacob Fromme, of counsel), for resp’t.

The complaint is not clearly drawn as a complaint for the recovery of the possession of land. The plaintiff avers plainly that he owns the title to a lot 100 feet square. He avers that the defendant claims an interest in or a title to the same, but he does not aver that the defendant is in actual possession, or that the lot is a vacant lot and that the defendant claims title thereto as provided by § 1502 of the Code. Banyer v. Empie, 5 Hill, 48 .

By the demand for judgment the plaintiff asks that the defendant be adjudged to surrender the possession thereof to the plaintiff, but a demand for judgment will not supply an omission to state a fact which is essential to sustain such a demand under the rules of pleading. As a complaint in ejectment, the plaintiff’s complaint was properly dismissed. There is, however, a cause of action stated to remove a cloud on the plaintiff’s title. The complaint shows that he owns the land and that the defendant claims it by virtue of a sale thereof made b^r the county treasurer of Westchester county in 1870 for the unpaid taxes of 1868 thereon. That the tax was invalid, the sale illegal and without authority of law, though valid in appearance. The answer denies the plaintiff’s title and all the allegations in respect to the claim of the derendant thereto, and in respect to the invalidity of the tax, the void sale and the apparent lien. The plaintiff asks for a cancellation óf the papers given by the county treasurer. If the complaint of the plaintiff is proven he is entitled to such a judgment. Bockes v. Lansing, 74 N. Y., 437 ; Lockwood v. Gehlert, 127 id., 241; 38 St. Rep., 261 ; Remington Paper Co. v. O'Dougherty, 81 N. Y., 474 .

The defendant’s title is apparently good, but is, in fact, totally bad.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurs; Dykman, J., not sitting.