Joseph A. Carey, Suing for the Benefit of Josie E. Gauthier, Appellant, v. Alfred Lange, Respondent

Joseph A. Carey, Suing for the Benefit of Josie E. Gauthier, Appellant, v. Alfred Lange, Respondent. Second Department, November 27, 1912. Ejectment — action by grantee in name of grantor to recover possession of lands held adversely when transferred—pleading — complaint. A complaint in an action for ejectment brought tinder section 1601 of the Code of Civil Procedure in the name of the grantor for the benefit of the grantee to recover possession of property transferred while the land was held adversely to the grantor, is not defective because it fails to allege a withholding of the premises from the plaintiff grantor, but alleges simply a withholding from the plaintiff’s grantee subsequent to the delivery of the deed. Appeal by the plaintiff, Joseph A. Carey, suing for the benefit of Josie E. Gauthier, from, a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of July, 1912, as amended by an order entered in said clerk’s office on the 5th day of August, 1912, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, a jury having been waived. James A. Sheehan, for the appellant. John McCormick [Peter P. McElligott with him on the brief], for the respondent. [MAJORITY — Carr, J.:] Carr, J.: This is an action in ejectment to recover possession of certain real property in the county of Queens. When it came on for trial in the Supreme Court in Queens county the complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action. The action was brought under section 1501 of the Code of Civil -Procedure by the grantee in a deed made while the grantor was out of possession, the land being held adversely to said grantor, and was brought in the name of said grantor for the benefit of said grantee. The supposed defect in the complaint was that it failed to allege a withholding of the premises from the plaintiff grantor, but alleged simply a withholding from the plaintiff’s grantee subsequent to the delivery of the deed in question. There is a sufficient allegation in the complaint that when said deed was delivered the defendant was in possession, claiming to hold adversely to the plaintiff, and that plaintiff was then entitled to immediate possession. The complaint then alleges further that from a fixed date, some time subsequent to the deed, the defendant withheld possession from the grantee. The learned trial court was of opinion that the allegation of such withholding from the grantee was not sufficient, but that the complaint should have alleged a further withholding from the grantor himself rather than from his grantee. The allegation in the complaint of a withholding of possession from a fixed date subsequent to the delivery of the deed occurs in a paragraph devoted to the question of damages sought to he recovered for a withholding subsequent to the delivery of the deed. This allegation of damage was not necessary to the complaint, and had it been ignored entirely, the complaint would still have stated a cause of action. While as to the defendant the deed in question was void, yet, as between the grantor and the grantee, it created in the grantee a right of entry as long as title remained in the grantor, and it is in the exercise of such right of entry that the statute permits the action to be maintained. (Dever v. Hagerty, 169 N. Y. 481.) Whatever judgment is obtained in such an action in favor of the formal plaintiff inures to the benefit of the grantee who has brought the action, even though it includes damages for withholding possession. The grantee, suing in the name of the plaintiff, did not plead himself out of court by an allegation reducing the period for which damages were claimed. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. Jerks, P. J., Hirschberg, Burr and Thomas, JJ., concurred. Judgment reversed and new trial granted, with costs to the appellant to abide the event.