
    Clason v. Baldwin.
    
      (Supreme Court, General Term, First Department.
    
    April 18, 1890.)
    1. Ejectment—Pleading and Proof.
    Plaintiff in ejectment claimed as the child of one Clason under a devise whereby he left his property to his two sons, William Oscar Clason and Edward Mortimer Clason, and to “such further child or children as may be born unto me. ” Plaintiff testified that her father had left three children, William Oscar, Edward Mortimer, and herself, and that the sons had died unmarried and intestate. Who her father was, or what the surnames of William Oscar and Edward Mortimer were, she did not testify; nor did she in any way connect herself with testator. Held, that her case was fatally defective.
    8. Same—Mesne Profits.
    Where a complaint in ejectment contains no allegations as to mesne profits, none can be recovered under it. Following Lamed v. Hudson, 57 N. Y. 151.
    3. Evidence—Declarations against Interest.
    In ejectment evidence of what a third person, having no interest in the property or controversy, told plaintiff about his having collected and paid over the rents of the premises, is not admissible as a declaration against interest.
    Motion for new trial on exceptions.
    Ejectment by Josephine F. Clason against Elizabeths. Baldwin to recover possession of real estate in New York. On the trial, plaintiff proved a paper title in William J. Clason in 1822, and a will probated September 23, 1824, whereby he left his property to his two sons William Oscar Clason and Edward Mortimer Clason, “and to such further child or children as maybe born unto me” by my said wife. The answer was a general denial, and set up the statute of limitations as a special defense. Plaintiff testified that her father left three children, William Oscar, Edward Mortimer, and herself, and that they had died unmarried and intestate. Who her father was, or what the surnames of William Oscar and Edward Mortimer were, she did not testify; nor did she in any way connect herself with the testator. She testified that a Mr. Carter had charge of the premises in 1860, and, under objection, what Mr. Carter had told her about the collection of the rents of the premises; that he had paid rents to her, but up to what time she could not remember. The court ordered a verdict for plaintiff for possession and $3,735 damages, and directed exceptions to be heard at the first instance at general term.
    Argued before Van Brunt, P. J., and Bartlett and Barrett, JJ.
    
      George W. Stevens, for plaintiff. Isaac N. Miller, for defendant.
   Van Brunt, P. J.

This was an action of ejectment brought to recover the possession of real estate in the city of New York. The answer was, substantially, a general denial. The plaintiff claimed as the child of William J. Clason, in whom a title was asserted to have been proved. The evidence, however, by a strange omission, fails to show who the plaintiff’s father was. It may, perhaps, be inferred that the plaintiff intended to swear that William J. Clason was her father; but she did not do so, and the plaintiff’s case was fatally defective in this respect.

The exception to the evidence of the declarations of Mr. Carter was clearly well taken. What Mr. Carter told the plaintiff about his having collected the rents of these premises was not competent evidence of the fact that he had ever collected the rent of the premises in question. The theory that such declarations are admissible because made against the interest of Mr. Carter cannot prevail. Mr. Carter had no interest in this controversy or property, and hence had no interest against which he could make a declaration. In fact, the proof shows that Mr. Carter did not make any declaration against his interest. What a debtor says when he is discharging a debt cannot be a declaration against his interest, because he pays the debt at the time of making the declaration, and hence has no interest upon which the declaration can operate. Mr. Carter, the evidence shows, says that he collected these rents and paid them over, and that is all. This is no declaration against his interest,' as has been shown.

The plaintiff was allowed to recover mesne profits without the complaint containing any allegations respecting the same. In the case of Larned v. Hudson, 57 N. Y. 151, this question was expressly decided; and we are unaware of any change in the rule of pleading. The case of Wallace v. Berdell, 101 N. Y. 13, 3 N. E. Rep. 769, in no way asserts any conflicting rule, neither have sections 1496 and 1497 effected any change. It is true that the framer of the Code, in his note to section 1496, says that this section was inserted to avoid the rule laid down in Larned v. Hudson, supra, that a separate action must be brought for mesne profits, but if the compiler of the Code had read this case he would have learned that the court therein expressly decided that a separate action was not necessary to recover mesne profits, but they might be recovered under appropriate allegations in the action of ejectment. The reasons why such allegations should be required as a preliminary to a recovery of mesne profits are shown in the case cited, and it is not necessary to repeat them here; and perhaps the only change which section 1496 of the Code has made is to compel the assertion of these causes of action in the action of ejectment which did not exist before. There does not seem to have been any intention, and certainly none such is expressed, to change the rule of pleading upon this subject. The complaint in this action containing no allegations as to mesne profits, none can be recovered under it. The exceptions must be sustained, and a new trial granted.

Barrett, J., concurs.

Bartlett, J.

I concur on the first ground mentioned in the opinion of the presiding justice.  