Warner v. Nelligar

New York Supreme Court

Warner v. Nelligar

12 How. Pr. 402

CourtNew York Supreme Court

DecidedApril 15, 1855

StatusPublished

Cited by1 cases

This text of 12 How. Pr. 402 (Warner v. Nelligar) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Warner v. Nelligar, 12 How. Pr. 402 (N.Y. Super. Ct. 1855).

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Opinion

Harris, Justice.

In Lawrence agt. Wright, (2 Duer, 673,)-Mr. Justice Doer seemed to think it was to be regretted that, in all actions relating to real estate, a compendious form of pleading, like that authorized by the 166th section of the Code, had not been prescribed. The learned judge had evidently failed to observe that the legislature had done precisely what he was inclined to approve.

By the 455th section of the Code, adopted for the first time in the revision of 1849, it is declared, that “ the general provisions of the Revised Statutes, relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.” The language of this section is obviously sufficiently broad, and was, no doubt, intended to retain the convenient mode of pleading, in the actions to which it relates, prescribed by the Revised Statutes. (See 2 R. S. 304, §§ 7, 8, 9 and 10.) It is enough now, as it was before the adoption of the Code, for the plaintiff, in an action to recover the possession of land, to state what estate he claims in the land, and that he was in possession on some day after his title accrued, and that the defendant, having afterwards entered into the pos- „ session, unlawfully withholds such possession from the plaintiff. It was, therefore, quite unnecessary for the plaintiffs to superadd to these requisite allegations, a statement of the conveyance under which they claimed to hold the premises. The statement, however, is made in a single sentence of five lines, [404]*404and cannot, by any possibility, prejudice the defendant, or embarrass him in pleading.

While, therefore, I am inclined to grant the motion, on the ground that, technically, the matter is redundant, I do not think the plaintiffs should be charged with costs, especially as the decision in Lawrence agt. Wright, above cited, had left the question in some doubt as to the proper mode of pleading in such an action.

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Harris, Justice.

In Lawrence agt. Wright, (2 Duer, 673,)-Mr. Justice Doer seemed to think it was to be regretted that, in all actions relating to real estate, a compendious form of pleading, like that authorized by the 166th section of the Code, had not been prescribed. The learned judge had evidently failed to observe that the legislature had done precisely what he was inclined to approve.

By the 455th section of the Code, adopted for the first time in the revision of 1849, it is declared, that “ the general provisions of the Revised Statutes, relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.” The language of this section is obviously sufficiently broad, and was, no doubt, intended to retain the convenient mode of pleading, in the actions to which it relates, prescribed by the Revised Statutes. (See 2 R. S. 304, §§ 7, 8, 9 and 10.) It is enough now, as it was before the adoption of the Code, for the plaintiff, in an action to recover the possession of land, to state what estate he claims in the land, and that he was in possession on some day after his title accrued, and that the defendant, having afterwards entered into the pos- „ session, unlawfully withholds such possession from the plaintiff. It was, therefore, quite unnecessary for the plaintiffs to superadd to these requisite allegations, a statement of the conveyance under which they claimed to hold the premises. The statement, however, is made in a single sentence of five lines, [404]*404and cannot, by any possibility, prejudice the defendant, or embarrass him in pleading.

While, therefore, I am inclined to grant the motion, on the ground that, technically, the matter is redundant, I do not think the plaintiffs should be charged with costs, especially as the decision in Lawrence agt. Wright, above cited, had left the question in some doubt as to the proper mode of pleading in such an action.

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12 How. Pr. 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-nelligar-nysupct-1855.

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