Louis Frazier, Appellant, v. Mevil Dewey and Jeremiah W. Jenks, Respondents

Louis Frazier, Appellant, v. Mevil Dewey and Jeremiah W. Jenks, Respondents. Bjectment —-misjoinder of causes of action—profits may he recovered, as well as damages for withholding—Code of Civil Procedure, §§ 1496, 1497. A complaint in ejectment closed with an allegation of damage to the plaintiff, “exclusive of the rents and profits heretofore received, or which may be received by the defendants or either of them during the pendency of this action, of five hundred dollars;” then followed two paragraphs which alleged, in the first, that there was a profitable boat house and bowling alley on two of the parcels, and, in the second, that on the other parcel there was a productive» hotel. The prayer of the complaint was, among ether things, for “ damages for the withholding, including the rents and profits, and the value of the use. and occupation to the amount of §2,000.” Held, that the complaint was not subject to demurrer, as improperly uniting several causes of action; That the court would regard the allegations relative to the boat house, bowling alley and hotel as specifying the “profits” of the premises, which the plaintiff was entitled to recover in an action of ejectment. Appeal by the plaintiff, Louis Frazier, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Essex on the 12tli day of December, 1895, upon the decision of the court rendered after a. trial at the Essex Special Term sustaining the defendants’ demurrer to the complaint taken upon the ground that several causes of action therein had been improperly united, with notice of an intention to bring up for review on said appeal the decision and order of the Special Term directing said interlocutory judgment and the final' judgment as therein stated made on December 9, 1895, and entered in said clerk’s office on the 12th day of December, 1895. The first part of the complaint, consisting of paragraphs numbered 1, 2, 3, 4, states a cause of action in ejectment for the recovery of three parcels of land, closing with an allegation of damage to the plaintiff, “ as near as plaintiff can estimate the same, exclusive of the rents and profits heretofore received or which may be received by the defendants, or either of them, during the pendency of this action, of five hundred dollars.” Then follow paragraphs numbered 5 and 6. In paragraph 5 it is alleged that there are situated on the first and third above-described parcels of land, a public boat house and a bowling alley ; * * * (that) the business carried on in and in connection with said boat house and bowling alley has during the season of 1895 been profitable, and that the same has been conducted by the defendants, * * * and that * * * defendants have received the rents and profits arising from such business, amounted to the sum of five hundred dollars.” In paragraph 6 it is alleged that there is situated on the second above described parcel of land a hotel or house of public entertainment, and that the rents and profits of said business during the season of 1895, and down to the time of verification of the complaint, were $1,000, and that same were received by the defendants. The prayer of the complaint is: First. For the possession of the several parcels of land. Second. Damages for the withholding, including the rents and profits and the value of the use and occupation to the amount of $2,000. Third. That the defendants be required to account as to the rents and profits received by them from the several parcels of land, or any or either of them. Grove M. Harwood and Sidney F. Maders, for the appellant. Richard L. Hand, for the respondents. [MAJORITY — Per Curiam:] 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 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, Avith costs, with leave to the defendants to Avitlidraw demurrer and ansAver in twenty days upon payment of costs. All concurred. So ordered.