Hussner v. . the Brooklyn City Railroad Co.

Botch, J. The judgment for the defendant founded upon the alleged insufficiency .of the complaint was properly reversed by the General Term. Without determining whether the description in plaintiff’s complaint, by its terms, ran to the center of Third avenue, or to its side line, it is apparent that the complaint alleged a title and possession which included the street, subject only to the public easement for highway purposes. It is impossible to know from the complaint alone by what evidence such title and possession were to be established. If the deed relied on contained no1 other description than that recited *23 in the complaint, so that plaintiff’s right depended wholly upon its construction, still that construction might be seriously affected or even controlled by other parts of the deed and by surrounding circumstances. (Mott v. Mott, 68 N. Y. 253.) Whether there were such circumstances, and what they were, and them bearing upon the question of construction, the plaintiff was not permitted to show. She alleged that her intestate owned the portion of the highway on which the defendant trespassed. She should have been permitted to have shown the fact, and to have had her deed read and construed in the light of such pertinent and admissible facts as she was able to establish. But the case was disposed of on the pleading. The plaintiff was turned out of court upon the ground that the complaint did not state a good cause of action. That was a mistake. The complaint alleged title to and possession of the'portion of the street upon or over which defendant was running its cars. If the boundaries did not on their face cover it, the allegation did. The averment might be true notwithstanding the language of the description. It was impossible to say it was not. The complaint in substance avers that the portion of the highway upon which defendant trespassed was owned and possessed by plaintiff’s intestate. After the description the complaint adds “ that said decedent was so possessed of the same subject only to the public easement of a common street or highway in that part thereof called Third avenue, which is used as a public street.” This amounts to an allegation that the decedent was in possession of part of the avenue, claiming to own it subject only to the public right. It then alleges that, while the decedent was so in possession of said premises, the defendant unlawfully entered “ upon a portion” of the same “ which •is used as a public highway.” The pleader did not wholly rely on his description. He supplemented that with a positive assertion of possession of the locus in quo. How he would have proved it we cannot know. We must assume that he may have had title. If the description was copied from his deed which we have no right to say, and he had no other title, which we must not presume, still, other parts of the deed and *24 surrounding circumstances might affect the construction. The complaint was sufficient. Whether it could be established or not was a question not before the court. The plaintiff was entitled to an opportunity to prove what if proved would have made a good cause of action for a trespass. The order should be affirmed and judgment absolute rendered for plaintiff on the stipulation, with costs. All concur. Order affirmed and judgment accordingly.