Overbagh v. Oathout , 97 N.Y. Sup. Ct. 506 ( 1895 )

PUTNAM, J.

This is an appeal from an order denying in part defendant’s motion to have the complaint made more definite and certain, and to have separate causes of action therein separately stated. The action was ejectment for nonpayment of rent, and the complaint set forth three leases,—the first by Isaac D. Ver Planck to David Lester, dated March 15, 1791, covering 137 acres; the second made by Isaac D. Ver Planck to David Lester, dated on the 12th day of September, 1797, covering 51 acres, from which 38 acres have been released; and the third made by Isaac D. Ver Planck to David Lester, dated June 20, 1801, covering 59 acres. The complaint stated that the yearly rent of the leases was 34£ bushels of good, merchantable wheat, or $20.04, to be paid on the 1st day of May in each year, but did not state the rent reserved or amount in arrear on each lease; that the plaintiffs have succeeded to the rights, title, and interest of Isaac D. Ver Planck in the demised premises, and the rents, covenants, and reservation in said leases; that the defendant is owner and in possession of a portion of the leased lands. The complaint alleged that notice of intention to re-enter has been given, and asked to recover the premises, with $195.27 for withholding the same. The motion was granted in part, by directing the service of an amended complaint stating the amount of annual rent reserved on each lease, but denying the motion in all other respects.

I think the complaint contains three separate causes of action, which, under the provisions of section 483 of the Code of Civil Procedure, should have been separately stated and numbered. It sets up three separate leases, under which plaintiffs claim to recover. They could have brought and maintained an action under each lease separately, and a judgment for or against them would not have estopped them from maintaining a suit on the other leases. It is difficult to see why the causes of action in favor of plaintiffs under the several leases mentioned in -the complaint are not as much separate as if the action were brought upon three promissory notes or three bonds. On the trial, plaintiffs will be compelled to produce different evidence to maintain their separate causes of action under each of the three leases. They will be obliged to show in each case the lease, the fact that defendant is in occupation of the premises therein described, a breach of the covenants contained in the lease, giving a right of re-entry, and notice of intention to re-enter. The judgment in the action must determine the amount of rent due on each lease, and the defendant, before judgment, or within six months after plaintiffs are put in possession -of the premises thereunder, may pay up the rent in arrears. Hence the same evidence will not support the several causes of action under the several leases set out in the complaint. The cause of action under each lease will require different testimony. Although the action is ejectment, plaintiffs’ claim is founded upon written instruments reserving an annual rent, and upon defendant’s breach of the covenants contained in said instruments, and upon the right to re-enter therein contained. Hence the action is in fact upon three sealed instruments, and it is quite clear that it contains three separate causes of action. That the different causes of action set forth by plaintiffs should be separately stated, is apparent. The defendant may wish to contest as to one, and not as to the others. He may conclude to pay the rent in arrear on one of the leases, and otherwise contest plaintiffs’ claim. With the complaint as it is, defendant would be seriously embarrassed in answering, or conducting his defense. If the several causes of action in the complaint are separately stated, plaintiffs will necessarily be compelled to set forth in their pleading which of the leased lots they claim defendant is the owner and in occupation of.

It has been held that a complaint in an action of ejectment is sufficient if the plaintiff alleges that he is seised and possessed of some interest in the premises, and entitled to the possession thereof, and that he is not compelled to show how he acquired title to the premises. Austin v. Schluyter, 7 Hun, 275; Walter v. Lockwood, 23 Barb. 228; People v. Mayor of New York, 28 Barb. 248. So I think the general allegation in the complaint, that the plaintiffs are now, and for six years last past have been, the owners of alj the right, title, and interest of the lessor in the demised premises, and the rents, covenants, and reservations therein, and entitled to receive the rents therein reserved, is sufficient.

• No question as to whether the complaint, as it is framed, states a cause of action, has been discussed by counsel for the respective parties, or is before us for consideration. Were it otherwise, we should doubt whether the pleading sets forth sufficiently the covenants contained in the leases, or any facts showing a breach of the conditions thereof which entitles the plaintiffs to re-enter or maintain the action.

The order should be modified by requiring, in addition to the amendment therein directed, that the separate causes of action set forth in the complaint shall be separately stated and numbered, and as modified affirmed, with $10 costs and disbursements to appellant