
    Jessie D. Plummer, Appellant, v. The Gloversville Electric Company, Respondent.
    
      Complaint—allegations in ejectment joined with a statement that the defendant stretched wires over the land and a prayer that they he removed.
    
    The complaint in an action brought against an electric company alleged that the defendant unlawfully entered upon the premises described in the complaint," they then being the property of and in the possession of the plaintiff, and that the defendant was still in possession thereof and unlawfully withheld the premises from the plaintiff, and, further, that when such entry was made the servants and agents so making it stretched. wires across and over the-entire premises and that such possession was so taken and was still held for the purpose of transmitting electricity across the premises upon such wires, and asked judgment that the defendant remove such wires from the premises.
    
      Held, that the latter allegations characterized the alleged possession of the. defendant, and, though averred in connection with the statement that the posses- ■ sion of the premises was unlawfully detained,. were not to be treated as surplusage: '
    That, if sustained by proof, especially in the absence of objection that they were not within, the issues made by the pleadings, they established the plaintiff’s right to a part of the relief asked for—the removal of the wires.
    Appeal by the plaintiff, Jessie D. Plummer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 18th day of January, 1897, upon the dismissal of the complaint directed by the court after a trial before the court without a jury.
    
      Clark L. Jordan, for the appellant.
    
      Edgar A. Spencer, for the respondent.
   Parker, P. J.:

The complaint in this action was dismissed upon the trials on the ground that it states a cause of action for ejectment only, and that, upon the facts proven, an action of ejectment co.uld not be -maintained against the defendant.

Without discussing the question whether or not such an action would lie,, we are of the opinion that the trial court imposed too strict a construction upon the complaint. It is true. that .such complaint states all the facts which would be necessary to establish a cause of action in ejectment against the defendant. It avers that the defendant unlawfully entered upon the premises described in the complaint, they then being the property of and in the possession of ■the plaintiff, and that it is still.in possession thereof and unlawfully withholds them from the plaintiff. But, in connection with these averments, it alleges several other facts that .are not at all applicable to an action in ejectment. Thus it states that when such entry was made, the servants ¡and agents so making it stretched wires across and over the entire premises; and that such possession was so taken and is still held for the purpose of transmitting electricity across the premises upon such wires, and for the purpose of maintaining -electric lights for its own use, in violation of the plaintiff’s rights and without paying, or offering to pay, any compénsation therefor,, and without any right or title so to do. These additional statements characterize the possession which the plaintiff claims the defendant has, and the prayer for judgment, that the defendant remove such wires from said premises, indicates what the possession was that the plaintiff wished surrendered to her. These additional facts show that the defendant has, without lawful authority, and in violation of the plaintiff’s rights, -entered upon her premises, stretched its wires across the same, and is still—in contempt of her objection — using and maintaining them there. Here is a cause of action set up which the facts proven sustained. We. do not think that they should have been treated as surplusage merely, although averred in connection with ■ the further statement that" the possession of the premises described was unlawfully detained from her. We think the facts proven were admissible under the complaint, as it .should fairly be construed, and that being proven to the court they established her right to a portion, at least, of the relief which she asked, to wit, the. judgment of the court that defendant remove the wires which it was maintaining there. Such a judgment could easily be enforced under the provisions of section 1241 of the Code.

Moreover, all these facts were proven without any objection on defendant’s part that they were not within the issues tendered by the complaint, and, being so before.the court, it should have rendered judgment for the relief which such facts .warranted.

For these reasons the judgment must be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed, new trial granted, costs to abide the event.  