
    Morgan L. Martin, Respondent, v. John T. Palmer and “Jane” Palmer, His Wife, the Name “Jane” Being Fictitious, etc., Appellants, Impleaded with Others, Defendants.
    Second Department,
    April 25, 1913.
    Partition — complaint — demurrer.
    A complaint in an action for partition which sets forth the chain of title from a person named and alleges that he was seized and possessed of the premises upon a certain date, and that he died twenty-one years later, but fails to allege that he was seized or possessed of the premises at any time subsequent to the date named, or at the time of his death, or that any of the alleged heirs at law or devisees of the person named have since been seized or possessed of the premises, and also fails to state any reason why certain defendants are made parties, is insufficient, and a demurrer thereto should be sustained.
    Appeal by the defendants, John T. Palmer and another, from" an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of March, 1913. • .
    
      Carl S. Stern, for the appellants.
    
      Charles E. Hunter, for the respondent.
   Jenks, P. J.:

The defendants Palmer appeal from an order of the.Special Term that denies their motion for judgment on the pleadings and overrules their demurrer that the complaint did not state facts sufficient to constitute a cause of action. . In form the action is for partition of realty. The first eighteen paragraphs of the complaint purport to set forth • the chain of title from John Richbell, who it is alleged was seized of title and possessed of the premises in October, 1663. It is alleged that he died in 1684, but there is no allegation that he was so seized or so possessed, at any time subsequent to 1663, or that he was so seized and so possessed at the time of his death. The pleader failed, to plead that any of the alleged heirs at law or 'devisees of Richbell and his descendants since were seized or were possessed of the premises. But the court cannot assume that Bichbell was seized and was possessed of the premises in 1684 from the allegation of such seizure and such possession in 1663. The .rule that a fact once shown to have existed is presumed to have continued until the contrary be shown is one of evidence, not of pleading. (Abb. Tr. Brief, § 53.) The court cannot assume that the premises continued in the family throughout the many generations thereof that followed John Bichbell. The final allegation that the plaintiff and certain defendants under and by virtue of the laws of inheritance of the State of New York were and are seized in fee simple absolute of the above-described' property and every part thereof, is not to be construed as if standing alone, because the pleader theretofore had set forth the facts relied on to show the title, and if these facts are defective this subsequent allegation is not curative as against demurrer. (Ely v. Azoy, 39 Misc. Rep. 669 [Special Term], citing Masterson v. Townshend, 123 N. Y. 458. See, also, Turner v. White, 73 Cal. 299, 300; Reiners v. Brandhorst, 59 How. Pr. 91; Henriques v. Yale University, 28 App. Div. 354; appeal dismissed, 157 N. Y. 672.) In addition, the complaint fails to state any reason why the Palmers are made parties defendant to this action. The Code of Civil Procedure- specifies those persons who must be made parties defendant to an action for partition (§ 1538)-and certain other persons who may be made such parties at the election of plaintiff (§§ 1539, 1540). These defendants do not fall within either class. The complaint, read as a whole, states that' they neither have nor claim any interest therein.

The order is reversed,, with $10 costs and disbursements, and the motion granted, with costs, with leave to the plaintiff to amend his complaint within twenty days -upon payment of costs, and also the costs and disbursements of this appeal.

Burr, Thomas, Carr and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs, with leave to plaintiff to amend his complaint upon payment of costs, and also the costs and disbursements of this appeal,  