Compton v. The Chelsea — 54 N.Y. St. Rep. 112

Majority

p. 112

Alexander T. Compton, Resp’t, v. The Chelsea, App’lt.

(Supreme Court, General Term, First Department,

Filed June 30, 1893.)

Headnote

2fow trial—Code Civ. Pro., § 1525.

A new trial under § 1525 of the Code should not be granted where the complaint contains allegations appropriate to an action for forcible entry and detainer and was apparently framed upon that theory.

Appeal from order granting plaintiff a new trial under § 1525 of the Code.

Action to recover possession of a suite of sooms in an apartment house. A judgment in favor of defendant on a former trial having been affirmed by the court of appeals, the motion for a new trial was made, upon which the order appealed from. was granted.

Shepard & Prentiss (W. H. Shepard, of counsel), for app’lt; A. T. Compton, resp’t in person.

It is undoubtedly true that upon the previous appeals this action has been characterized as an action of ejectment, and this probably arose, not from an examination of the pleadings, but 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 the 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 be 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

p. 113

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 be 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 ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Follett and Parker, JJ., concur.