Walter S. Rockey, Respondent, v. Janet S. Haslett, Appellant, Impleaded with Rebecca H. Robertson, Individually, and as Executrix, etc., of Esther Haslett, Deceased, and Others

Walter S. Rockey, Respondent, v. Janet S. Haslett, Appellant, Impleaded with Rebecca H. Robertson, Individually, and as Executrix, etc., of Esther Haslett, Deceased, and Others. A complaint alleging a came of action in ejectment and for damages, and also one for breach of covenant of quiet enjoyment — they should be separately stated — it should be made definite as to whether a ten years’ lease was 'in writing, as to the authority to execute it, and as to whethei' the assent of persons not executing it was in writing. The complaint in an action alleged that William H. Haslett, by his will, gave certain real estate to his widow, Esther Haslett, for life, for the use and benefit of herself and children, with remainder over to the children; that on April 20, 1900, the widow, who was one of the executrices of the will, “ acting under the power given her under said will, and in the presence of her children, the above-named defendants, they being the beneficiaries and remaindermen under said will, as hereinbefore shown, executed an agreement in writing with the plaintiff, as her own act and as the act of said defendants and with the inten- , tion that it should be both her and their act, and with the express consent, authorization, acquiescence and participation of the defendants, whereby they leased to the plaintiff for a term of ten years from the 1st day of May, 1900,” part of the premises so devised to them; that “the defendants derived benefit from, accepted, ratified and confirmed said agreement or lease.” The complaint further alleged that the plaintiff executed “said lease or agreement, being ignorant of the fact that said Esther Haslett was only a tenant for life and, not the owner in fee of said premises, and believing that the said lease, executed as in the preceding paragraph herein set forth,' insured to him the quiet and peaceable enjoyment of said premises for the term aforesaid, took possession of and occupied the same for the purpose of conducting a drug store from about the first day of" May, 1900, to the date of his eviction thereinafter mentioned, performed all the conditions therein on his part, and dror three years paid/ the stipulated rent as aforesaid to said Esther Haslett and the defendants.” The complaint also alleged that the widow, “acting for herself and for the defendants herein, in said lease agreed with the plaintiff that he should peaceably and quietly occupy and enjoy the said described premises for the said term of ten years; ” that the widow died May 15, 1903, and that on July 31, 1903, “ the defendants, the owners under said will, and as such owners, entered upon the same and ousted the plaintiff , therefrom ” and still own and are in possession of the premises without plaintiff’s consent, and have .unlawfully withheld possession from him to his damage in the sum of $40,000. The relief prayed for was the possession of the premises, $40,000 damages arid costs. Held, that the complaint alleged two causes of action, one for ejectment and for • damages for withholding possession, and one for damages for the breach of a covenant of quiet enjoyment contained in the lease and for the eviction, and that the defendants were entitled to have those causes of action separately stated and numbered; That the defendants were also entitled to have the complaint made more definite and certain in the following particulars, viz.., by a statement whether the lease for ten years was in writing and whether such lease was executed by the widow as’executrix, or by virtue of a power granted by the "will, or individually, or as. the agent or attorney in fact for the defendants as well as individually,, or whether the alleged consent, authorization and acquiescence on the part of the defendants was in writing or parol, also whether the widow made the covenant of quiet enjoyment individually or as agent or attorney in fact for the defendants, and whether her authority to act in that regard for the defendants was in writing. Appeal by the defendant, Janet S. Haslett, from an order of the Supreme Court, made at th.e Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of Hovember, 1903, denying the said defendant’s motion to have the amended complaint made more definite and certain, and to have the causes of action separately stated and numbered. The plaintiff alleges that one William H. Haslett died seized of premises described in the complaint, leaving a last will and testament which was duly admitted to probate on the 16th day of ¡November, 1887 ; that under the residuary clause thereof the premises in question were given to his widow, Esther Haslett, for life for the use and benefit of herself and children- with the remainder over to the children; that he appointed his wife and daughters, Rebecca and Janet, executrices of his will; that his wife survived him and died on the 15th day of May, 1903, and the other defendants are their children. In subdivision 4 of thé complaint it is alleged that on the 20th day of April, 1900, testator’s widow, “ acting under the power given her under said will, and in the presence of her children, the above named defendants, they being the beneficiaries and remaindermen under said will, as hereinbefore shown, executed an agreement in writing with the plaintiff, as her own act and as the act of said defendants and with the intention that it should be both her and their act, and with the express consent, authorization, acquiescence and participation of the defendants, whereby they leased to the plaintiff for a term of ten years from the 1st day of May, 1900,” part of the premises so devised to them, which are also particularly described, for a specified annual rental; that “the defendants derived benefit from, accepted, ratified and confirmed said agreement or lease.” In the 5th subdivision plaintiff alleges that he thereupon executed “ said lease or agreement, being ignorant of the fact that said Esther Haslett was only a tenant for life and not the owner in fee of said premises, and believing that the said lease, executed as in the preceding paragraph herein set forth, insured to him the quiet and peaceable enjoyment of said premises for the term aforesaid, took possession of and occupied the same, for the purpose of conducting a drug store from about the first day of May, 1900, to the date of his eviction hereinafter mentioned, performed all the conditions therein on his part, and for three years paid the stipulated rent as aforesaid to said Esther Haslett and the defendants.” In the 8th subdivision it is alleged that the widow, “acting for herself and for the defendants herein, in said lease agreed with the plaintiff that he should peaceably and quietly occupy and enjoy the said described premises for the said term of ten years; ” and in the 9th subdivision it is alleged that on or about the Hist day of July, 1903, “the defendants, the owners under said will, and as such owners entered upon the same and ousted the plaintiff therefrom ” and still own and are in possession of the premises without plaintiff’s consent and have unlawfully withheld possession from him to his damage in the sum of $40,000. The prayer for relief is for the possession of the premises, for $40,000 damages and for costs. Arthur Knox, for the appellant. Frederick H. Kellogg, for the respondent. [MAJORITY — Laughlin, J. :] Laughlin, J. : It is evident that the plaintiff has alleged two causes of action : one for ejectment and for damages for withholding possession, and the other for damages for the breach of a covenant of quiet enjoyment contained in the lease and for the eviction. The appellant was, therefore, entitled to have these causes of action separately stated and numbered. (Code Civ. Proe. § 483.) The' complaint should also be made more definite and certain. This was a lease for ten years which would be void if not in writing. The allegations of subdivision 4 of the complaint are indefinite in that they do not definitely show whether the-lease was executed by the widow as executrix or by virtue of a power granted by the will or individually, or in form as the agent or attorney in fact for the other defendants as well as individually, or whether the alleged consent, authorization and acquiescence on the part of the other defendants was in writing or parol. These are facts which the appellant is entitled to have specifically stated in the complaint. A bill of particulars concerning them might not suffice. They are facts which the appellant is entitled to have alleged that she may-avail herself of the remedy by demurrer or answer and thus raise any question that may arise thereon. These observations are equally applicable to subdivision 8 of the complaint, and the allegations thereof should also be amended so as to show whether the widow in form made the covenant individually, or as agent or attorney in fact for the other defendants, and whether her authority to act in that regard for the other defendants was in writing. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion granted for the relief as indicated in this opinion, with ten dollars costs. Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs.