Smith v. Dayton

Order modified by eliminating paragraph “ 1 ” of the directed contents of the bill of particulars. As so modified, the order is affirmed, without costs, the bill of particulars to be served within ten days from the entry of the order hereon. The complaint herein sets forth all the facts essential to the maintenance of an action under sections 500 and 501, article 15, of the Real Property Law. The defendants, in their answer, assert an estate in fee adverse to the plaintiff. Under such circumstances, the proceedings are the same as if it was in an action in ejectment brought by the defendant against the plaintiff. A defendant, to succeed, must do so upon the strength of his own title and not on the weakness of plaintiff’s title. (Best Renting Co., Inc., v. City of New York, 248 N. Y. 491.) Therefore, the burden of proof as to title in this ease is on the defendants and they are not entitled to a bill of particulars of plaintiff’s title. They are, however, entitled to know the nature of the one-year possession claimed by plaintiff, whether it was actual or implied. Lazansky, P. J., Carswell, Davis, Johnston and Taylor, JJ., concur.