Walter v. Lockwood

4 Abb. Pr. 307

Opinions

By the Court

*—Balcom, J.

—The complaint is sufficient to entitle the plaintiff to recover. The form of the complaint in actions to recover the possession of real property, need not be like declarations in ejectment suits under the Revised Statutes. The complaint in actions of this nature must state facts instead of fictions ; and its sufficiency must be tested by the Code and not by the Revised Statutes. The answer must also conform to the Code. The only provisions of the Revised Statutes, which have been made applicable to actions for the recovery of real estate, are those that relate “ to the subject-matter” of the actions (Code, § 455), and not those that relate to the form of such actions, or the contents of the pleadings therein. .

I think Mr. Justice Harris erred in supposing the mode of pleading in such actions, which was prescribed by the Revised Statutes, must still be adopted (Warner v. Nelligar, 12 How. Pr. R., 402), and if he erred, the decision in Lawrence v. Wright (2 Duer, 673) is also erroneous. I am of opinion that the judgment in the action should he reversed, and a new trial ordered, with costs to abide the event.

Mason, J.,

delivered an opinion sustaining the same conclusion.

Present, Shankland, Mason, Gray, and Balcom, JJ.