Rowland v. Miller

By the Court.—Gildersleeve, J. This is an action for ejectment. The description of the property in suit is set forth in the complaint as follows: “ Commencing at a point in the easterly line of said premises three and one-eight inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.” This is a description of a straight line, and nothing else. Section 1511 of the Code of Civil Procedure provides that “ the complaint must describe the property claimed with common certainty, by setting forth' the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.” As it is impossible to deliver possession of a straight line, the complaint clearly does not set forth facts sufficient to constitute a cause of action; and, therefore, the demurrer must be sustained. Code, section 488. The complaint does not describe any property at all; and there is, therefore, nothing of which a bill of particulars can be given, and nothing to be made more [404] definite and certain by motion, under section 546 of the Code; it consequently follows that defendants’ proper course was to demur. See Budd v. Bingham, 18 Barb., 494. The judgment and order appealed from are affirmed, with costs. Sedgwick, Ch. J., and Dugro, J., concurred.