
    Clayton H. Griswold, Appellant, v. J. Fred Manning, Respondent.
    
      Wrongful detention — what allegations establish it — ownership implies right to possession — allegation as to the demand'— a defense need not be anticipated by the plaintiff.
    
    A complaint in an action fora wrongful detention, which alleges absolute ownership in the plaintiff, need not allege that the plaintiff is entitled to immediate possession of the chattels in question, as ownership imports right to possession.
    A statement that the defendant isin possession of property owned by the plaintiff, which he refuses to deliver upon demand, sets forth facts showing a wrongful detention.
    The complaint need not expressly aver that the demand was made by the plaintiff personally or by his authorized agent.
    The factthat the complaint unnecessarily alleges “ that said chattels (the horses^ . were delivered into the possession of said defendant for the purpose of having said.defendant train said animals for trotting purposes," merely shows that the defendant was in possession for no definite time, his right to such possession being terminated by the plaintiff’s demand for the chattels. It does not impose upon the plaintiff the duty of anticipating any defense of a right of detention which the defendant may have under an unexpired contract of lease or by virtue of a lien.
    
      Appeal by the plaintiff, Clayton H. Griswold, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 13th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Chemung Trial Term ; the appeal is also stated to be from an order made at the Madison Special Term and entered in said clerk’s office on the 6th day of March, 1901, denying the plaintiff’s motion to vacate the aforesaid judgment; and notice is given of an intention to bring up for review, upon such appeal, a judgment entered in said clerk’s office on the 11th day of February, 1901, and also several orders entered in the action.
    
      Roswell R. Moss and Frank C. Ogden, for the appellant.
    
      Frederick Collin, and C. H. Everts, for the respondent.
   Edwards, J.:

The complaint alleges that the plaintiff is the owner of the chattels therein described, of the value stated, and that the defendant, who is in possession of the same, refuses, after demand made, to. deliver them to the plaintiff.

The trial court dismissed the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

The dismissal of the complaint was error. It Contained every statement of fact essential to a recovery. Allegations of plaintiff’s ownership of property, of defendant’s possession and his refusal, on demand, to deliver to plaintiff are sufficient. (Chapin v. Merchants' National Bank, 31 Hun, 529; Barry v. Calder, 48 id. 449.) Proof of these allegations on the trial, in the absence of any evidence on the part of the defendant showing á right of detention, would entitle the plaintiff to recover.

The defendant contends that the complaint lacks essential averments in an action for wrongful detention, one of which is that it does not allege that the plaintiff is entitled to immediate possession. Such allegation is unnecessary where absolute ownership is alleged. Ownership imports a right of possession. The complaint must show the title to the property in the plaintiff or his right to possession by virtue of some special property therein. Both of these are not essential. Either is sufficient to entitle him to maintain an action. (Berney v. Drexel, 33 Hun, 35; Kerner v. Boardman, 39 N. Y. St. Repr. 61.) Another ground for impugning the sufficiency of the complaint is that it does not set forth facts showing that the detention is wrongful. I think this proposition is incorrect. A statement that defendant is in possession of property owned by the plaintiff which he refuses after demand to deliver sets forth a wrongful detention.

Another contention of the defendant is that the allegation of demand and refusal in the complaint is insufficient for the reason that it is not therein stated that -the demand was made by the plaintiff personally or by his authorized agent. I think this is untenable. The ordinary import of an allegation that a demand was made is that it was made by the plaintiff personally or by some one authorized to act for him, and not by a stranger ; and the defendant must .have understood this to be the meaning, of the pleading and could mot have been misled thereby, especially when taken in connection with the immediately preceding statement in the complaint, “ that ¡since the close of the summer season, said plaintiff has been endeavoring to get possession of said chattels.”

In addition to the allegations stated, the complaint further avers “that said chattels (the horses) were delivered into the possession of said defendant for the purpose of having said defendant train said animals for trotting purposes.” This is an unnecessary allegation. It is surplusage which the plaintiff could ignore on the trial or he could prove it without affecting his cause of action.. It simply shows that the defendant was in possession of the horses by the permission of the plaintiff for no definite time, and as a conclusion of law, the defendant’s right of possession was terminated by the plaintiff’s demand. If the defendant has any right of detention under an unexpired lease or contract, or by virtue of a lien, it is a matter of defense and must be pleaded by him in justification. The plaintiff was not bound in his complaint to anticipate any such defense and set up matters in avoidance.

The judgment should be reversed and a new trial granted, with costs to the appellant to abidei the event..

Parker, P. J., Smith, Ohase and Houghton, JJ., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  