Merrill v. Dearing ( 1876 )

Cornell, J.

The demui’rer interposed in this case is not to any particular count or alleged cause of action, but to the whole complaint, specifying five distinct grounds. Hence, if the complaint is not insufficient by reason either •of an improper joinder of different causes of action, or of a failure to disclose facts sufficient to constitute a cause of action, the demurrer must be overruled.

To the objection that three alleged causes of action are improperly united, to wit, a claim to recover possession of •certain real estate, damages for a wrongful detention, and a claim for the rents and profits of the same during such unlawful detention, it is a sufficient answer that the statute {Gen. St. ch. 66» § 98, sub-div. 5,) expressly allows “claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same,” to be united in the same complaint.

A present ownership in fee simple, and a right to the immediate possession of real property, on the part of the plaintiff, together with a wrongful possession by defendant, and an unlawful withholding of the possession from the plaintiff, constitute a good cause of action for the recovery of real property, and a complaint which plainly and concisely states these facts is sufficient under the code. Walter v. Lockwood, 23 Barb. 228. In this respect the complaint in this case is sufficient.

The mere fact that the complaint is divided into several paragraphs, each separately numbered, is alone insufficient to identify them as distinct counts, relating to different causes of action. In neither is the matter therein contained set up as a separate cause of action, and cannot be so-regarded unless the nature of the matter requires it. It follows from this view of the complaint that its sufficiency is not to be determined by a consideration of either of its several paragraphs, separately and alone. The facts stated in the first and second paragraphs are sufficient to constitute a cause of action for the recovery of the real property therein described.

Conceding the correctness of defendant’s position that plaintiff’s title or ownership accrued subsequent to the commencement of defendant’s possession, and that, as against a prior presumed lawful possession, facts should be stated, showing its termination, or that it has become unlawful, it is inapplicable to this case, because the only possession which the complaint admits or states that the defendant ever-had was a wrongful and unlawful one.

Order affirmed.