William Alt, Respondent, v. Patrick K. Gray, Appellant

William Alt, Respondent, v. Patrick K. Gray, Appellant. Beal property—possession must be regained before damages are recoverable from a disseizor — an allegation that plaintiff is the landlord or lessee is insufficient. A party cannot maintain an action to recover from a disseizor the rents or profits of land, or the damages, resulting from his being kept out of possession thereof, until he himself has first regained possession. Title or possession in a plaintiff is necessary in order that he may maintain an action in trespass upon land, and an alternative allegation that the plaintiff is the landlord or lessee is insufficient. He should state facts showing that he has title. In order to maintain an action to recover damages for withholding possession the plaintiff must do more than make a naked claim to possession. Appeal by the defendant, Patrick Iv. Gray, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of August, 1900, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendant’s demurrer to the amended complaint. The complaint reads as follows: The plaintiff, complaining of the defendant herein, by this, his amended complaint, 'respectfully shows to this court: “ First. That at and during all the times hereinafter mentioned the plaintiff was .the landlord or lessee of certain real property or premises commonly known as and by the street Number 234 East 126th street, in the City of New. York, Borough of Manhattan, and as such landlord or lessee he was at all of said times lawfully entitled to the use, enjoyment, possession, occupation and control of the said premises, and of each and every part thereof, as well as to the rents, issues and profits thereof, all of which was at and during said period well known to this defendant, as plaintiff is informed and verily believes. “ Second. That the plaintiff became the lessee or landlord of said premises on or about the first day of December, 1897, and he so continued continuously for the period of two years next thereafter. “ Thi/rd. That at and during all the said time or period herein mentioned the defendant, for the purpose, and with the intent of depriving and withholding from the plaintiff the nse, occupation and enjoyment of the said premises, and of the rents, issues and profits thereof, and in hostility to the said plaintiff’s right, title and interest of, in and.to the said premises, and of, in and to the rents, issues and profits thereof, and for the purpose of ousting and keeping the plaintiff ousted from the said premises, wrongfully occupied, possessed, used and enjoyed the said premises, and the rents, issues and profits thereof, and has wrongfully refused to vacate same upon lawful demand of the plaintiff, which the plaintiff frequently and duly ■made of the defendant, and the defendant wrongfully .exercised dominion and acts of ownership over said premises, with the intent to cause loss and damage to the plaintiff, fully knowing at all of said times of the plaintiff’s aforesaid rights of, in and to the aforesaid premises, as plaintiff is informed and verily believes. “ Fourth. That the fair, reasonable and market value of the use and occupation of the said premises for the period, aforesaid is and-was $960.00, as plaintiff is informed and verily believes, and that the plaintiff has duly demanded of the defendant the payment to him of the said sum, but that the defendant, has wrongfully refused, and still refuses, to do so, and that no part thereof has ever been paid, and that there is. now due, owing and payable therefor by the defendant to the plaintiff the said sum of $960.00, with interest. “ Fifth. That by reason of the premises and of the wrongful acts and omissions of the defendant, the plaintiff has been damaged in the smn of $960.00, with interest. “Wherefore, plaintiff demands judgment against the defendant for the sum of $960.00,'with interest, besides the costs and disbursements of this action.” - Joseph A. Flannery, for the appellant. Samuel I. Franlcenstein, for the respondent. [MAJORITY — Patterson, J. :] Patterson, J. : ■ The demurrer to the amended complaint should have been sustained. It is admitted by the respondent that the action is not one for rent as such, nor one for use and occupation — but he insists that the complaint states facts constituting a cause of action either for the mesne profits of land or for trespass to or upon land. The action cannot be maintained in the first-mentioned aspect, for the reason that the plaintiff must recover possession of the land in some lawful manner before he is in a position to claim the rents and profits taken by a disseizor (Bockes v. Lansing, 74 N. Y. 437, 442) or the damages inflicted by being kept out of possession. The mesne profits are incident to the title and possession. (Sedg. & Wait. Tr. Title Land, § 648.) The complaint cannot be held sufficient as one framed in trespass to land in any form in which that action will lie. Title or possession in a plaintiff is necessary to the maintenance of such an action. (Holmes v. Seely, 19 Wend. 507.) Here there is neither an allegation of actual possession nor of its equivalent “ possession which the legal title draws after it,” to use the^ expression of Helson, Ch. J., in the case cited. The plaintiff does not aver that he is the owner. He says that he is the landlord or lessee — such an alternative allegation amounts to nothing. The plaintiff does not know or does not state what his real relation to the land is. _ He is bound to allege title"; that is, to set forth facts enough to show that he has title. ' If his action were intended to be one for damages for withholding possession the plaintiff has failed to show his right — he has only made a naked claim to possession. He has not stated facts sufficient to sustain an action for forcible entry and detainer, nor for trespass qume clausum fregit. Ho wrongful entry is alleged nor wrongful holding over after the expiration of a term, nor anything to show a right in the plaintiff to possession under a lease from one entitled to that possession or to transfer it. The complaint cannot, of course, be regarded as one in trespass to try title. It is radically defective. The judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend within twenty days on payment of costs in this court and in the court below. Van Brunt, P. J., Rumsey, Ingraham and Hatch, JJ., concurred. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to amend within twenty days on payment of costs in this court and in the court below.