Neale v. Walter

128 A.D. 827, 112 N.Y.S. 1041, 1908 N.Y. App. Div. LEXIS 591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1908
• Status: Published

Opinion

Gaynor, J.:

This is an action under sections 1638 and 1639 of the Codé of Civil Procedure to determiné an adverse claim to real estate. The ■ complaint was dismissed at .the trial for not stating facts sufficient, ' in that there is no allegation that the plaintiff has been in possession ' of the land for one year. The allegation is that the plaintiff is and " has been for more than one year “ seized ” and “ possessed ” of the land; but this is followed by an allegation that the land is “ vacant and not actually occupied ”. Mevertheless the complaint is good, for possession is alleged, and constructive possession suffices, The said statute at first required “ actual. possession ” ; but-by amendment in 1891 (Chap. 210, L. of 1891)- the.word “actual” was omitted. The phrase was used in the opposite sense of “ possession in law, or constructive possession ” (Churchill v. Onderdonk, 59 N. Y. 134). The illustration in Clason v. Stewart (23 Misc. Rep. 177) of constructive possession, in reference to this change in the statute, viz., “showing that a constructive possession, as through tenants, is sufficient ”, was inadvertent, for possession through á tenant would be actual possession.

, The order should be reversed;

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.