Underwood v. Jackson, ex dem. Varick

By the Court, Sutherland, J. The affidavits submitted to the court, relative to the possession of the premises by the defendant at the commencement of the suit, are contradictory; but the weight of evidence is in favor of the plaintiff, that the defendant was in possession of the whole of the premises, and his son, N. Underwood, jun. of no part thereof. It is true, as urged by the defendant’s counsel, that the affidavit in the usual form, filed on the entry of the rule to appear, was satisfied in its terms, by the fact that the defendant appeared to defend for a part of the premises, and thus confessed himself in possession of a part. Still this affidavit was sufficient to authorize the entry of the rule. It conformed to the established practice in such cases, and would have authorized a default and judgment for the whole of the premises against the casual ejector, had he not appeared and defended for a part; and it is not perceived why it should not be a good foundation for a judgment against that part of the premises of which the defendant was confessedly in possession, and for which he elected not to defend. The motion is denied with costs.