Frazier v. Dewey

73 N.Y. St. Rep. 514

Opinion

PER CURIAM.

We do not think the demurrer well taken. The plaintiff, in framing his complaint in ejectment, is entitled to insert a demand for damages for withholding the property. Code Civ. Proc. § 1496. Section 1497 provides:

“ Those damages include the rents and profits or the value of the use and occupation of the property where either can legally be recovered by the plaintiff.”

We think that the plaintiff did not, by paragraphs 5 and 6, set forth - separate causes of action against the defendants for the recovery of the profits which they made in carrying on business upon the land in question, but that he thereby intended to specify the “ profits ” which he mistakenly supposed are referred to in section 1497, as'included in the “damages” which he could rightfully demand under section 1496.

The interlocutory judgment is reversed, with costs, and the demurrer overruled, with costs, with leave to the defendants to withdraw demurrer, and answer in 20 days upon payment of costs.