
    The People of the State of New York and James B. Taylor and Owen W. Brennan vs. The Mayor &c. of the City of New York, and others.
    In an action, under the code, to recover the possession of real estate, it is only necessary for the plaintiff to allege, in his complaint, that he is seised or possessed of some certain estate or interest in the premises, and entitled to the possession of the same; and that the defendant unlawfully withholds from him the possession thereof.
    What are good causes of demurrer to a complaint, for want of form.
    Where it appears from the complaint, in an action against a municipal corporation and others, to recover the possession of real estate, that the premises are actually occupied by the tenants of the corporation, the complaint shows that the plaintiffs have no right to make the corporation a defendant.
    The rule of the revised statutes, that in such a case the tenants in the actual occupation shall alone be made defendants, has not been altered by the code.
    Neither the common law rule, nor the statute making conveyances of land held adversely void as to the party in possession, applies to conveyances by the people of the state, or by public officers'duly authorized.
    Such conveyances are not within the reason of the common law rule, or of the statute; and strictly there can be no adverse possession, as against the people. The people cannot be disseised.
    A lease of lands, from the people to individuals, is valid, and gives to the lessees a right of entry, although the premises are, at the time, actually held and occupied under a title hostile to the title of the state. And having the right of entry, the lessees can bring their action to recover the possession, and the rents and profits since the execution of the lease, as damages, &c.
    A joint demurrer to a complaint, by several defendants, will he overruled if the complaint shows a cause of action by the plaintiffs, or a portion of them, against some of the defendants.
    
      DEMURRER to complaint. The complaint, as amended alleged that the people of the state of New York are now, and have been for many years past, owners in fee of certain premises situate in the city of New York, and lying on the westerly side of West street, and north of a parallel line of the southerly line of Dey street and south of the northerly line of Yesey street, in the third ward of the said city, and which premises are about 480 feet on West street and extend westerly about 440 feet, and are legally entitled to the rents, issues and profits thereof, up to the first of May, and to the possession thereof, since, unless a certain lease thereof to .the plaintiffs, James B. Taylor and Owen W. Brennan, thereinafter more particularly referred to, be held valid. That being so possessed thereof, the defendants, the mayor, aider-men and commonalty of the city of New York, have taken possession thereof, and through their agents have rented the same, or the greater portion thereof, for market and other purposes, to the other defendants in this action, and unless said lease be held valid, withhold from the said plaintiffs, the people of the state of New York, the possession thereof. That being such owners of said premises, as aforesaid, the commissioners of the land office, on behalf of the people of said state, and under and by virtue of the authority by law vested in them of the general care and superintendence of all lands belonging to the state, the superintendence of which is not vested in some other office or board, did duly make, execute and deliver to James B. Taylor and Owen W. Brennan, the plaintiffs, a lease of the premises for the term of one year from the 24th day of April, 1858, at the yearly rent of $5000, payable quarterly in advance, and that under said lease, if the same be held valid, the plaintiffs, Taylor and Brennan, became lawfully possessed of said premises on the 1st day of May, 1858. That the plaintiffs, Taylor and Brennan, at the time of the execution and delivery of said lease, paid into the treasury of said state, the sum of $1250, being the rent of said premises for the first three months of the term of said lease, and took a receipt therefor. The said plaintiffs, Taylor and Brennan, further alleged; that being so possessed of said premises, the mayor, aldermen and commonalty of the city of New York, claiming to own said premises, had taken possession thereof, as aforesaid, and through their agents had rented the same to the other defendants herein, who wrongfully withhold from said plaintiffs, Taylor and Brennan, the possession of said premises. That said Taylor and Brennan are legally entitled to the possession of said premises, under and by virtue of said lease as aforesaid, and to the rents, issues and profits thereof since the 1st day of May, 1858. That the parties now in actual possession of said premises, claim to hold as lessees or by permits from the mayor, aldermen and commonalty of the city of New York, and had been directed by the agents of said city, or those pretending to act as such agents, not to deliver possession thereof to said plaintiffs, or to pay to them the rents thereof, but to pay the same to the agents of said city or to those who claim to act as such, and to be duly authorized to receive them. That said tenants refuse to acknowledge the right of the plaintiffs, or to pay them the rent thereof, but pay the rent of said premises to persons who are, or claim to act as the agents of said city to receive the same. That but a small portion of the rents so collected have been heretofore paid into the city treasury, and the same or a greater portion thereof have been and will hereafter be lost to the parties entitled thereto by reason of the loose, careless, unauthorized and improvident manner in which said rents have been collected and paid over; and that the persons so acting or professing to act for the city in the collection of said rents are for the most part pecuniarily irresponsible, and some of them not duly authorized by the city to act, and the plaintiffs are apprehensive that unless they are restrained by the order of this court from the further collection of said rents, the same will be lost by the city and by the plaintiffs, who claim to be legally entitled thereto. That the occupants of the said premises pay and for several years last past have paid in the aggregate for the use thereof more than the sum of $40,000 annually. That such rents are paid by the respective occupants of said premises weekly. That it would be the duty of the collector of the city revenue to collect and receive such rents if the same really belonged to the city; that he does not collect the same, but the said rents are collected and received by a person or persons acting or pretending to act as collector or collectors of the market revenue. That the plaintiffs were also informed by Azariah G. Flagg, comptroller of the city of Hew York, that the city had received but a very small portion, if any, of the money collected for the aforesaid rents; and the said Flagg had also informed the plaintiffs that inasmuch as he has been advised and believes that the said premises belong to the state, and therefore that the city has no legal right to collect and enforce the payment of the same, he has refrained from attempting so to do, and from exercising that control over it which as comptroller it would be his duty to do in case the same belonged to the city; that many of the defendants are persons of little if any, pecuniary means, several of whom reside out of this state. That said defendants pay their rent weekly in advance, and that it is essential to the security of those entitled to collect and receive the said rents, that the same should be so paid, and if the same should not be so collected weekly, the same will be in danger of being wholly lost to the plaintiffs, inasmuch as most of the defendants are destitute of sufficient tangible property to pay the said rent if the same should remain in arrear for any considerable time; that the said Flagg has several times stated to persons who have seen him on behalf of the plaintiffs, that in his opinion a receiver ought to be appointed to collect and receive the aforesaid rents; that the same may be preserved during this litigation, to be paid over to the party who may, at the termination thereof, be adjudged entitled thereto; and in order to prevent the same from going into the hands of parties many of whom are irresponsible and have no right thereto, whether the said property belongs to the city or the state. The plaintiffs demanded judgment against the defendants and each of them in favor of the plaintiffs or such of them as the court should adjudge entitled thereto, ' and;that, the rights of the several plaintiffs as between themselves and against, the defendants and each of them might be declared and adjudged, and that the defendants might be adjudged to render possession of said premises to the plaintiffs, or to such of them as should be declared entitled thereto; and to pay to them jointly or severally the sum of $100,000 damages for the rents, issues and profits of said premises whilst the same have been unlawfully withheld from the plaintiffs. . And an injunction and a receiver were asked for. •
    The objections taken to the complaint, by the demurrer, are stated in the opinion of the court.
    
      W. Hutchins and E. W. Stoughton, for the plaintiffs.
    
      Charles O’Conor, Wm. C. Noyes and Richard Busteed, for the defendants.
   Sutherland, J.

Before the code, when actions had .names, this action would have been called an action of ejectment to recover the possession of certain real estate in the city of Hew York. The corporation of the city of Hew York, and about one hundred and sixty of the other defendants jointly demur to the complaint, on the following grounds : First. That it does not contain facts sufficient .to constitute a cause of action. Second. That three sep>arate and distinct causes of action are improperly joined, to wit: (1.) A cause of action by the people for 'improvident and unlawful management of property by the city corporation. (2.) An ejectment by the people, with a claim for damage.. (3.) A like claim by Taylor and Brennan. Thirdly. That said three causes of action are; not separately stated. Fourthly. That there is a defect of parties plaintiffs, by the improper joinder of Taylor and Brennan as plaintiffs, with the people, who being claimants adverse to the people, should be defendants..

The defendants, William H. Taylor, and a few others, separately demur to the complaint on the following grounds: First; That the complaint does not state facts sufficient to constitute a cause of action on behalf of the people. Secondly. That there is a defect of parties by the improper joinder of Taylor and Brennan with the people.

As was pertinently said on the argument, “the complaint is essentially a pleading under the code; it is without form.” Two sets of plaintiffs by different attorneys, the people of the state, by Lyman Tremain, their attorney general, and Taylor and Brennan, by Slosson and Hutchins, their attorneys, come into court, and in the same complaint say, that the defendants unlawfully withhold the possession of certain premises in the city of Hew York, either from the people, or from Taylor and Brennan; and with other relief asked for, ask that the defendants “may be adjudged to render possession of the said premises to the plaintiffs, or to such of them as shall be declared entitled thereto; and to pay to them jointly or severally the sum of one hundred thousand dollars for the rents, issues, and profits of said premises whilst the same have been unlawfully withheld from the said plaintiffs.”

The facts stated in the complaint to show a right to the possession, or a right of entry, in either the people, or in Taylor and Brennan; and to a judgment that either the people of the state, or Taylor and Brennan, recover the possession, with damages for the rents, and profits, &c., are substantially as follows: That the people of the state are now, and have been for many years, owners in fee of the premises, and are legally entitled to the rents, issues, and profits thereof since, unless a certain lease thereof to Taylor and Brennan (after-wards particularly described in the complaint, and a copy of which is annexed thereto) be held valid. That the mayor, aldermen &c. of the city of Hew York, have taken possession of the premises, and through their agents rented the same, or the greater portion thereof, for market and other purposes, to the other defendants in the action; and unless said lease be held valid, withhold from the plaintiffs, the people of the state, the possession thereof to their great damage and injury, That the commissioners of the land office, on behalf of the people of the state, by virtue of the authority vested in them by law, executed and delivered to Taylor and Brennan a lease of the premises for one year from the 24th day of April, 1858, at the yearly rent of five thousand dollars, payable quarterly in advance. That under said lease, if the same be held valid, Taylor and Brennan became lawfully possessed of the premises on the first day of May preceding the commencement of the action (May, 1858.) That Taylor and Brennan being so possessed of the premises, the mayor &c., claiming to own said premises, have taken possession thereof as aforesaid, and through their agents have rented the same to the other defendants, who wrongfully withhold from Taylor and Brennan the possession of the premises, to then- great damage and injury. That Taylor and Brennan are legally entitled to the possession of said premises under the lease, and to the rents and profits thereof since the first day of May, 1858. That the parties now in the actual possession of the premises claim to hold as lessees, or by permits of the mayor &c., and have been directed by the agents of the city not to deliver possession thereof to the said plaintiffs, or to pay to them the rents thereof, but to pay the same to the agents of the city. That the tenants refuse to acknowledge the right of the plaintiffs, or to pay them the rent, but pay the rent to those who act or claim to act as the agents of the city to receive the same. That the occupants of the premises pay, and for several years preceding the commencement of the action, had paid in the aggregate, for the use of the premises, the sum of forty thousand dollars annually. These appear to be all the allegations in the complaint, bearing on the question of the right of possession, or to damage for the withholding the possession, or the rents, issues and profits. There are other allegations in the complaint, as to the loose and improvident manner in which the rents of the premises had heen collected and paid over; the pecuniary irresponsibility and want of authority of persons professing to act for the city, in the collection of the rents; the danger that the rents will be lost by the city, and by the plaintiffs; the duty of Mr. Flagg, the city comptroller, to collect the rents if they belonged to the city; and his refraining from collecting the same, because he believed that the premises belonged to the state, and that the city'had no legal right to such rent; the non-residence and want of pecuniary means of many of the defendants, &c.; but these last allegations appear to have been made for the purpose of obtaining the temporary injunction, restraining the city corporation from collecting the rents, and the receiver to take charge of the premises, and collect the rents, and the general relief asked for in the complaint.

From the wreck of forms effected by the code, and the alternating cases, strange mixture of allegations of fiction and of fact, alternative judgment and confused union of legal and equitable relief presented and asked for by the two sets of plaintiffs in this complaint, I have diligently and patiently tried to pick out one good cause of action, either" in behalf of the people, or of Taylor and Brennan, against either the city corporation, or the tenants, alleged by the complaint to be in the actual occupation of the premises. I say allegations of fiction and of fact in the complaint, for it is evident that the allegation of actual possession by the people of the state, and by Taylor and Brennan, and of actual ouster by the mayor &c.., actually or inferentially alleged in the complaint, were inserted therein, under the mistaken impression countenanced by a few reported cases since the code, that the fictitious (in most cases) allegations of actual possession by the plaintiff on a certain day, and of entry and ouster thereafter by the defendant, retained by the revised statutes out of the old fictions of the action of ejectment, had also been preserved by the code. (See Ensign v. Sherman, 13 How. Pr. R. 35; Warner v Nelligar, 12 id. 402.) But the first of these cases was reversed by the general term in the second district, (14 How. 439;) and I suppose it may be said to be pretty well settled now, that in an action to recover the possession of real estate under the code, it is only necessary for the plaintiff to allege in his complaint, that he is seised or possessed of some certain estate or interest in the premises, and entitled to the possession of the same; and that the defendant unlawfully withholds from him the possession thereof. ( Walter v. Lockwood, (23 Barb. 228. Sanders v. Leavy, 16 How. 312.) It is not good cause of demurrer that there are too many plaintiffs or too many defendants. (Peabody v. Washington Co. Ins. Co., 20 Barb. 340; 12 How. 134. 1 Abbott, 82. Code, § 144.) Nor is it good cause of demurrer, that the plaintiff asks in his complaint, for more than it shows he is entitled to; for relief that he is not entitled to; or for further relief than he is entitled to. Nor is the insertion in the complaint of redundant, or impertinent matter, or of irrelevant or unmeaning verbiage, cause of demurrer. If I understand the code, and the tenor and spirit of the decisions under the code, the plaintiff may present in his complaint a mass of heterogeneous facts, and a volume of unmeaning words, and any number of prayers for the most various and inconsistent relief; and none of these defects can be reached by demurrer, provided the complaint contains, no matter in what state of disorganization, the elementary constituents of a good cause of action. (Watson v. Husson, 1 Duer, 242. Smith v. Greenin, 2 Sandf. 702. Richards v. Edick, 17 Barb. 260. Hammond v. Hudson River Iron and M. Co., 20 Barb, 386; 11 How. Pr. R. 218.) On demurrer to such a complaint, on the ground that it contains no cause of action, it is the duty of the court to uncover the mass of heterogeneous facts, and to sort out and arrange them; and if it is found that any lot or parcel of them, when arranged and placed together, will stand alone as a cause of action, it is the duty of the court to overrule the demurrer.

I do not think the theory of the complaint in this case is more than one cause of action. That cause of action is to recover the possession of the premises, and the rents and profits, as damages for the withholding the same. The plaintiffs are evidently in doubt which of them has the right to the possession, and to such damages; but I do not think that the theory of their complaint is that if it should turn out that Taylor and Brennan were entitled to recover the possession, and damages for the rents and profits of the same, since the execution of the lease to them, the people of the state also claim, and will be entitled to recover in this action damages for the rents and profits prior to the execution of the lease to Taylor and Brennan. Such claim, on the part of Taylor and Brennan for the possession and damages for the rents and profits, since the •accruing of their right of entry; and on the part of the people of the state against either the city corporation, or the tenants in possession, or jointly against both, for damages for the rents and profits, prior to the accruing of Taylor and Brennan’s title, could not be united in the same action before the code; and it would appear that they cannot be since the code. (Leland v. Tousey, 6 Hill, 328. Ainslie v. The Mayor &c., 1 Barb. 169. Tompkins v. White, 8 How. Pr. R. 520. Van Horne v. Everson, 13 Barb. 531.)

It would appear from the complaint, that because § 167 of the code in speaking of causes of action which might be joined, specifies claims to recover real property, “ with or without damages for the withholding thereof, and the rents and profits of the same,” the plaintiffs supposed, that either the people, or Taylor and Brennan could recover in this action, with the possession of the premises, the specific rents paid or payable by the tenants in possession to the city corporation as their landlord—in other words, that by the code, while the action for the possession proceeded on the idea that the defendant was a trespasser, the claims for the rents &c., in the same cause of action, could proceed on the idea that he was a tenant of the plaintiff; and that thus the defendant could be treated as both a tenant and a trespasser in stating the same cause of action. From this idea probably proceeded the plaintiffs’ allegations in the complaint, going to show that there was danger of the rents being lost; of improvident and careless management in the collection of the rents; of doubts of Mr. Flagg as to the title, &c.; and the prayer for an injunction, and a receiver, which have added so much to the confusion of the complaint.

But I suppose the code cannot justly be charged with the absurdity the complaint would appear to assume; I suppose that in an action under the code to recover the possession of real estate, the further claim and proceeding allowed in the action to recover the rents and profits, &c. are also allowed against the defendant as a trespasser; in other words, that they are allowed as a substitute for the action of trespass, and. the suggestion on the record, for the mesne profits, before the code. (Tompkins v. White, supra.) In such action for the possession, or in a separate and independent action for themesne profits, against the landlord or tenant, or both jointly, which probably could be brought now as well as before the code, (see case in 6 Hill, supra,) the plaintiff would be entitled to recover as damages what he could prove the premises were reasonably worth annually; and not, as a matter of course, the specific amount of annual rent which the tenant had paid or agreed to pay, or the landlord had received, or agreed to receive. Upon the whole, although I at first thought the complaint in this case was intended to contain a separate and independent cause of action on the part of the people for the rents and profits, prior to the execution of the lease to Taylor and Brennan; yet upon further examination, I think it was not intended to contain any claim for rents, and profits, and damages, for withholding the possession, or otherwise, except as incident to the claim and right to recover the possession. There is, therefore, not more than one cause of action in this complaint.

Are the facts in the complaint sufficient to constitute one cause of action by either the people of the state or by Taylor and Brennan, against either the city corporation, or the other defendants, the tenants in the actual occupation of the premises, for the recovery of the same, with or without damages, for the withholding thereof? This is the question; and I think the only question on these demurrers.

It is very clear that there is no cause of action by either the people, or by Taylor and Brennan, against the city corporation, for withholding the premises &c., stated in the complaint. The complaint shows, that the corporation does not withhold the possession of the premises; but that the tenants in the actual occupation, the other defendants, do. The complaint showing that the premises in question were actually occupied by the tenants of the city corporation, it shows that the plaintiffs had no right to make the city corporation a defendant in an action to recover the possession of the same. The rule of the revised statutes, that in such a case the tenants in the actual occupation should alone be made defendants, has not been altered by the code. (Champlain and St. Lawrence R. R. Co. v. Valentine, 19 Barb. 484, 493. Van Horne v. Everson, 13 id. 526. Fosgate v. Herkimer Manuf. Co., 9 id. 287. Van Santvoord’s Pl. 2d ed. 176, 7, 8, n. 1. Shaver v. McGraw, 12 Wend. 558. Putnam v. Van Buren, 7 How. Pr. R. 31.) Had the city corporation demurred separately in this case, on the ground that there was no cause of action stated in the complaint against it, I should have sustained the demurrer; but the demurrer being a joint demurrer by the corporation and most of the other defendants, the demurrer must be overruled, if the complaint shows a cause of action by the people, or by Taylor and Brennan, against such other defendants. (Eldridge v. Bell, 12 How. 549. Philips v. Hagadon, Id. 17. Brownson v. Gifford, 8. id. 392. Van Santvoord’s Pl. 671.) We have arrived, then, at this question on these demurrers: does the complaint show a cause of action by either the people of the state, or Taylor and Brennan, against the defendants, who are alleged to be in the actual occupation of the premises as tenants of the city corporation ? On the theory which evidently dictated the complaint, I think it does not. It is evident that the complaint assumes that the rule that a conveyance of lands held adversely is void, and gives no right of entry to the grantee, applies to conveyances by the people of the state. Hence, the two sets of plaintiffs, the alternative prayer for judgment, and some of the other peculiarities of this complaint. The complaint was evidently intended to meet the plea of adverse possession at the time of the execution of the lease to Taylor and Brennan, which it was supposed the defendants could or might set up. This, by the revised statutes, could be done by naming the grantor and grantee as plaintiffs, in different counts. (Ely v. Ballantine, 7 Wend. 470.) But I suppose that this privilege of fiction has fallen before the realities of the code, and that now by the code the action must be brought in the name of the real party in interest. (§ 111,) The code supposes that the plaintiff knows both the law and the facts of his case, so as to verify it by his oath; and does not permit him to speculate, by stating the case, or his case, in different ways in different counts.; and I do not think "it intended to make an action for the recovery of real property an exception. . .

If it were the law, as the plaintiffs appear to have assumed, that a conveyance by the people of the state, of lands held adversely, is void, I should not be able to find any cause of action whatever in the complaint—for the complaint, while it alleges title in the people, the execution of the lease to Taylor and Brennan, and their right to the possession without qualification or condition, also contains other allegations of fact, from which it would appear that when the lease to Taylor and Brennan was executed, the premises were actually held and occupied by the tenants of the city, claiming under title adverse to that of the state; and these contradictory allegations in effect—in stating one and the same cause of action; the first showing a right in Taylor and Brennan to bring the action ; and the second showing the lease to Taylor and Brennan void, and therefore, showing a right in the people of the state to bring the action—would neutralize each other, and probably leave the complaint without any cause of action certainly and sufficiently stated, in either the people, or in Taylor and Brennan. But the complaint was plainly dictated under an error as to the law. Neither the common law rule, nor the statute making conveyances of land held adversely void as to the party in possession, applies to conveyances by the people of the state, or by public officers duly authorized. Such conveyances are not within the reason of the common law rule, nor of the statute; and strictly, there can be no adverse possession as against the people; the people of the state cannot be disseised. (Jackson v. Gumaer, 2 Cowen, 552. Allen v. Hoyt, Kirby, 221. Barney v. Cutler, 1 Root, 489, 491. La Frombois v. Jackson, 8 Cowen, 589.)

It follows that the lease to Taylor and Brennan was valid, • and gave them a right of entry, although the premises at the time were actually held and occupied under a title hostile to the title of the state; and having the right of entry, Taylor and Brennan could bring their action to recover the possession of the same, and the rents and profits since the execution of the lease as damages, &c. The complaint contains this cause of action on the part of Taylor and Brennan alone, against the defendants, the tenants in the actual occupation of the premises, alone; but this is sufficient to save the complaint on this joint demurrer by the city corporation, and the other defendants. The plaintiffs must, therefore, have judgment on the demurrer, with liberty to the defendants, or such of them as have not answered, to answer in twenty days on payment of costs.

In arriving at this conclusion, I have assumed that it sufficiently appears that the commissioners of the land office were authorized to execute the lease to Taylor and Brennan. By Laws of 1819, page 300, § 3, the commissioners of the land office may lease for a term not exceeding one year, any lands belonging to the state, having improvements on them. It is not alleged in the complaint, that the premises leased to Taylor and Brennan had improvements on them; hut it is alleged that the lease was duly executed hy the commissioners under the authority hy law vested in them; and as public officers are to he presumed to do- their duty, and to act within the powers given them by law, unless the contrary appears, I think it sufficiently appears that the commissioners had power to execute the lease to Taylor and Brennan.

[New York Special Term,

October 28, 1858.

Sutherland, Justice,]  