
    WILLIAM MOORES, Respondent, v. CHARLES LEHMAN, Impleaded, &c., Appellant.
    
      Ejectment.—Pleading.—Requisites of complaint.
    
    Where a complaint in an action of ejectment does not set forth that defendant unlawfully withholds, or that he entered without the consent of the plaintiff, or in anywise wrongfully, or that plaintiff is entitled to the immediate possession of the premises, and does not contain any equivalent allegation, it will be held bad on demurrer.
    It will not be presumed that defendant, in such case, is a wrongdoer. The presumption is that one in possession is lawfully in possession.
    Except in matters of form, it is still the rule to construe pleadings most strongly against the pleader.
    Before Sedgwick,. Ch. J., and Freedman, J.
    
      Decided June 5, 1885.
    
      Appeal by defendant from judgment entered against him upon a demurrer and from the order overruling the demurrer.
    The facts appear in the opinion.
    
      John Townshend, for appellant:
    I. The form prescribed by the revised statutes, when in force, indicates very clearly what are the facts which still constitute a cause of action. (1) Plaintiff in possession. (2) While plaintiff in possession defendant entered. (3) And unlawfully withholds possession. The last requirement is not met by the complaint. The presumption is that one in possession is-lawfully in possession (Hill v. Draper, 10 Barb. 454; Maltoner v. Dominick, 4 Ib. 466). The court will not presume in favor of a plaintiff anything he has not alleged (Cruger v. Hudson R. R. Co., 12 N. Y. 190 ; Malone v. Sherman, 94 Super. Ct. 530 ; Parkhurst v. Wolf, 41 Ib. 320 ; People v. Padner, 10 Abb. N. C. 462). A pleading cannot be sustained upon implications unless they necessarily follow from what has been alleged (Magauran v. Tiffany, 62 How. Pr. 251). Except in matters of form “ it is still the rule to construe doubtful pleadings most strongly against the pleader” . . . “when a pleading is susceptible of two meanings that shall be taken which is most unfavorable to the pleader ” (Clark v. Dillon, 31 Alb. L. J. 155, Nov., 1884). Courts ought not to encourage loose or ambiguous pleading (Cook v. Warren, 88 N. Y. 40).
    II. To recover real estate, it is necessary for the plaintiff to prove that he is the owner of the property, and that the defendant withholds from him the possession without right (Sanders v. Levy, 16 How. Pr. 312). The possession must be unlawfully withheld from plaintiff, and that fact must affirmatively appear upon the face of the complaint (Taylor v. Crane, 15 How. Pr. 359 ; Moak’s Sandford Pldgs. 326 ; Sedgwick & Wait, Trial to Land, § 433; 5 Wait's Practice, 839 ; People v. Mayor, &c., 28 Barb. 248).
    
      
      Robert L. Wensley, for respondent:
    I. It is contended by defendant’s counsel, that from all that appears in the complaint, the defendant, Lehman, may be lawfully in possession. If the tenancy of either of the defendants was lawful, as against the plaintiff, then the possession of the defendant would be the possession of the plaintiff, and in a legal sense he could not be said to withhold the possession from plaintiff.
    II. The mere use of the word “ unlawfully ” in the complaint for which defendant contends, would be simply the statement of plaintiff’s conclusion as to the character of the occupancy, and would not be the statement of a fact, and could therefore have no influence for or against the sufficiency of the complaint, and as a matter of good pleading, ought not to be inserted (Russell v. Clapp, 1 Barb. 483 ; Ensign v. Sherman, 14 How. 442), and if inserted the demurrer would not admit its truth (Kinnier v. Kinnier, 45 N. Y. 539).
    III. The statement of the single fact that plaintiff is the owner in fee simple absolute of the premises is sufficient to show that he is entitled to the possession of the land until the defendant shows a right of possession in himself. Plaintiff in his complaint is not required to anticipate every defense to his action, nor to negative every state of facts under which defendants might be entitled to the possession of the premises against the owner of the fee (Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Cohen v. Continental Life Ins. Co., 69 Ib. 304). Nor to state conclusions which are to be implied from the facts stated (Case v. Carroll, 35 N. Y. 391). But only to state facts which, if proved, will entitle him to judgment (Russell v. Clapp, 1 Barb. 483).
   By the Court.—Freedman, J.

This action is one in ejectment. The complaint alleges that the plaintiff is seized in fee simple absolute of certain premises particularly described therein, and which are located in the city of New York ; that the defendant, Lehman, was and is the occupant of the said premises, and that he.so occupies the same under a lease of tenancy from, or by agreement with, and consent of defendant, Townshend ; and that the defendant, Townshend, is in possession of the premises, and withholds possession thereof from the plaintiff, although plaintiff has demanded from said defendant the delivery to him of such possession of said premises ; to plaintiff’s damage, as is alleged, in the sum of $1,000. The judgment demanded is the immediate possession of the premises, and $1,000 damages, for the withholding of such possession.

The defendant Lehman demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action against him.

•The complaint in an action of ejectment is now gov-. erned by the rules which apply to complaints in all other actions, and, amongst other things, such a complaint must state facts sufficient to constitute a cause of action.

In the case at bar, the complaint does not allege either that the defendants unlawfully withhold, or that the defendants entered without the consent of the plaintiff, or in any wise wrongfully, nor that plaintiff is entitled to the immediate possession of the premises. Without some one of these allegations, or some equivalent allegation, it will not be presumed that the defendants are wrongdoers. The presumption is that one in possession is lawfully in possession (Hill v. Draper, 10 Barb. 454).

Except in matters of form, it is still the rule to construe doubtful pleadings most strongly against the pleader, and when a pleading is susceptible of two meanings, that is taken which is most unfavorable to the pleader (Clark v. Dillon, 97 N. Y. 370).

For all that appears, the defendant Townshend may be in possession' under a lease from the plaintiff which has not yet expired, and hence the implication does not follow from what has been alleged, that he unlawfully withholds. The court at special term therefore erred in overruling the demurrer.

The judgment and order should be reversed with costs, and the defendant Lehman should have judgment upon the demurrer with costs, with leave, however, to the plaintiff to amend his complaint upon payment of both bills of costs.

Sedgwick, Oh. J., concurred.  