Mower v. Mower — 20 Wend. 635

Majority

p. 635

Mower vs. Mower.

Headnote

Sn an action of ejectment, where several parcels of land are claimed in the same declaration, and the defendant concedes the plaintiff’s right to recover as to some, and denies it as to others of the parcels, the court on motion will, on terms, strike from the declaration the parcels, the right of the plaintiff to which is conceded, and leave the parties to litigate only as to the others.

This was an action of ejectment for dower, in which the plaintiff claimed to recover several distinct parcels of land. The defendants admitted her right to recover two of the parcels described in the declaration, but denied her right as to the residue. They therefore applied to the court for leave to surrender the two parcels, and that as to those all further proceedings be stayed.

after advisement, made an order, that the two parcels in respect to which the right of the plaintiff was conceded, be struck from the declaration, upon payment of costs and upon the defendants surrendering the possession of the two parcels and delivering to the plaintiff a stipulation that the mesne profits of those parcels be assessed at the same time that the mesne profits of the other parcels be assessed in case the plaintiff shall recover in respect to such other parcels; and if he do not so recover, then that they be assessed in like manner as if judgment had passed in favor of the plaintiff for the two parcels stricken from ihe declaration.