Sanders v. Parshall

BARNARD, P. J. The complaint is not clearly drawn as a complaint for the recovery of the possession of land. The plaintiff avers plainly that he owns the title to a lot 100 feet square. He avers that the defendant claims an interest in or a title to the same, but he does 21 not aver that the defendant is in actual possession, or that the lot is a vacant lot, and that the defendant claims title thereto as provided by section 1502 of the Code. Banyer v. Empié, 5 Hill, 48. By the demand for judgment the plaintiff asks that the defendant be adjudged to surrender the possession thereof to the plaintiff, but a demand for judgment will not supply an omission to state a fact which is essential to sustain such a demand under the rules of pleading. As a complaint in ejectment, the plaintiff’s complaint was properly dismissed. There is, however, a cause of action stated to remove a cloud in the plaintiff’s title. The complaint shows that he owns the land, and that the defendant claims it by virtue of a sale thereof made by the county treasurer of Westchester county in 1870, for the unpaid taxes of 1868 thereon; that the tax was invalid, the sale illegal, and without authority of law, though valid in appearance. The answer denies the plaintiff’s title, and all the allegations in respect to the claim of the defendant thereto, and in respect to the invalidity of the tax, the void sale, and the apparent lien. The plaintiff asks for a cancellation of the papers given by the county treasurer. If the complaint of the plaintiff'is proven, he is entitled to such a judgment. Bockes v. Lansing, 74 N. Y. 437; Lockwood v. Gehlert, 127 N. Y. 241, 27 N. E. Rep. 812; Paper Co. v. O’Dougherty, 81 N. Y. 474. The defendant’s title is apparently good, but is in fact totally bad. The judgment should be reversed, and a new trial granted; costs to abide event.