Bucher v. Carroll

Hardin, J. : The amendment of the Revised Statutes in 1862 (chap. 485), provided for cases tried before the court without a jury, and before referees; and, therefore, the original statute as thus amended applies to a case like this tried by the court without a jury, if the judgment vacated was a “judgment in the action of ejectment rendered upon * * * a decision of a single judge upon the facts.” (2 N. Y. Stat. [Edwards], § 36, 317. By section 43 of the Revised Statutes cited supra, the plaintiff upon recovering judgment in ejectment * * * shall also Toe entitled to recover damages against the defendant for the rents .and profits of the premises recovered. As the complaint contained all the elements essential to the statement of a good cause of action in ejectment, the statute Referred to supra applies, unless the insertion of the other allegations takes the case out of the statute. It was held before the Code that the statute applied to legal actions exclusively in ejectment, and it was never applied to equitable actions. Shumway v. Shumway, 42 N. Y., 145, op. of [621] Foster, J.) That case is an authority for holding that the rule is the same since the Code. That was a case where an action was brought to set aside the deed of the ancestor as having been obtained by undue influence, and because the grantor had not capacity to make it. At the trial it was held and decided that the grantor had not capacity, and that it was obtained by fraud, and the deed was sot aside, and the court adjudged that the title was in the heirs-at-law and that the plaintiffs were entitled to possession. Thus it appears that the action was in the nature of a bill in equity to strike down the deed, and to have such relief as the parties were entitled to, with the deed canceled. But in the case in hand the complaint avers title in the plaintiff, that the defendants are in possession and wrongfully withhold the possession, and states additional facts in respect to questions, which might arise in assessing the damages for wrongfully withholding the premises, and upon which an application for a. receiver might be based. But we do not see that the facts stated in addition to the.ordinary averments in ejectment change the cause of action from ejectment to one in equity for equitable relief only. (Hudson v. Caryl, 44 N. Y., 553.) We think the complaint must determine the character of the action. (Olendorf v. Cook, 1 Lans., 37.) “ The only consequence of joining with such a cause of action, other equitable causes which are well founded is, that all must be tried with a jury ” (opinion of Johnson, C., in People v. A., and S. R. R. Co., 57 N. Y., 174; and Davis v. Morris, 36 id., 569; Bradley v. Aldrich, 40 id., 511). When the defendants set up the lease and averred that they were holding under it, and that there had been no breach of it, it was proper for the plaintiff to reply that there was a breach of the conditions in the lease, and therefore that it was not any defence to the legal action of ejectment stated in plaintiff’s complaint. (Phillips v. Gorham, 17 N. Y., 270; Cuff v. Dorland, 55 Barb., 496; Carpenter v. Ottley, 2 Lans., 455.) The plaintiff sought to recover possession of his lands upon. his legal title, and the other averments were mere incidental facts-which did not change the character of the action. [622] Being for the strict legal right to the lands and for damages for withholding, we think it was properly held at the Special Term that the Revised Statutes applied, and entitled the plaintiff to a .new trial as a matter of right upon payment of the costs of the . action. The order is right and is affirmed, with ten dollars costs and disbursements. Present — Talcott,<P. J., and Smith, J., concurred. Order affirmed, with ten dollars costs and disbursements.