Alvord v. Hetsel

Fish, J. I think the complaint in an action to recover real estate ought to aver that the plaintiff is the owner or seized in fee, and is entitled to the possession, or that defendant wrongfully or unlawfully withholds possession from plaintiff. The complaint is defective in these particulars. The defendant may be rightfully in possession even though the fee is in the plaintiff (14 How. Pr., 439; Ensign agt. Sherman, 4 Abb. Pr. R., 307; 16 How., 308 ; Saunders agt. Leroy, 23 Bosw., 228; Walter agt. Sackwood, 28 Bosw., 240 ; People agt. Mayor, 31 Hun, 296; Van Voorhees agt. Kelly, opinion by Daniels, J.). Demurrer sustained. Note.—Abbot’s Forms (pp. 513, 514) unfavorably affected by decision. Pd.