Alt v. Gray

Patterson, J. : ■ The demurrer to the amended complaint should have been sustained. It is admitted by the respondent that the action is not one for rent as such, nor one for use and occupation — but he insists that the complaint states facts constituting a cause of action either for the mesne profits of land or for trespass to or upon land. The action cannot be maintained in the first-mentioned aspect, for the [565] reason that the plaintiff must recover possession of the land in some lawful manner before he is in a position to claim the rents and profits taken by a disseizor (Bockes v. Lansing, 74 N. Y. 437, 442) or the damages inflicted by being kept out of possession. The mesne profits are incident to the title and possession. (Sedg. & Wait. Tr. Title Land, § 648.) The complaint cannot be held sufficient as one framed in trespass to land in any form in which that action will lie. Title or possession in a plaintiff is necessary to the maintenance of such an action. (Holmes v. Seely, 19 Wend. 507.) Here there is neither an allegation of actual possession nor of its equivalent “ possession which the legal title draws after it,” to use the^ expression of Helson, Ch. J., in the case cited. The plaintiff does not aver that he is the owner. He says that he is the landlord or lessee — such an alternative allegation amounts to nothing. The plaintiff does not know or does not state what his real relation to the land is. _ He is bound to allege title"; that is, to set forth facts enough to show that he has title. ' If his action were intended to be one for damages for withholding possession the plaintiff has failed to show his right — he has only made a naked claim to possession. He has not stated facts sufficient to sustain an action for forcible entry and detainer, nor for trespass qume clausum fregit. Ho wrongful entry is alleged nor wrongful holding over after the expiration of a term, nor anything to show a right in the plaintiff to possession under a lease from one entitled to that possession or to transfer it. The complaint cannot, of course, be regarded as one in trespass to try title. It is radically defective. The judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend within twenty days on payment of costs in this court and in the court below. Van Brunt, P. J., Rumsey, Ingraham and Hatch, JJ., concurred. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to amend within twenty days on payment of costs in this court and in the court below.