
    Josephine F. Clason, Resp’t, v. Elizabeth S. Baldwin, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Ejectment—When holder op record title need not prove actual possession.
    Where the plaintiff’s title appears by the record to have been regularly derived from the original owner there attaches to it aright of possession; and this secures to the holder of the title constructive possession and the right to recover against one without title, without showing actual possession.
    2. Same—Non-joinder op parties.
    Where in an action of ejectment the plaintiff failed to make tenants, who were the actual occupants of the premises, parties as required by § 1512, Code Civil Procedure, and the complaint did not disclose this omission, the remedy of the defendant is to set up the non-joinder by answer; otherwise the objection is waived.
    3. Same—Damages—Must be alleged in complaint.
    Where in such an action the plaintiff wishes to recover damages for the withholding of the possession he must lay a foundation for the claim by specifically alleging it in the complaint; if he do not he cannot recover damages.
    Appeal from a judgment on the verdict of a jury, and from an order denying a motion for a new trial.
    
      Isaac N. Miller, for app’lt; Geo. W. Stephens, for resp’t.
   Daniels, J.

The judgment appealed from is for the recovery by the plaintiff of the possession of the premises known as No. 42 Sheriff street, in the city of New York, and the sum of $3,942.50 damages for the withholding of the same after the commencement of the action. The case was previously before this court, and the decision then made in it is reported in 31 N. Y. State Rep., 350.

The plaintiff derived her title from her father, William Jones Clason, as one of his children and heirs at law. At the time of his decease he left three children and his widow surviving him. By his will, which was duly proved, he provided an annuity for his widow amounting to the sum of $700, and charged its payment upon his real and personal estate. Subject to the payment of the annuity, he gave his real and personal estate to his two sons and such future child or children as should be born of his wife as tenants in common, subject to the further direction that if either of his children should die without lawful issue, then the share of that child should go to the survivor or survivors of his children. The will was dated on the 18th of March, 1823, and the plaintiff was born on the 13th of June of the same year. One of the sons died on the 27th of April, 1825, and the other on the 7th of October, 1860. They were each unmarried when they became deceased, and consequently without lawful issue. And the widow died on the 27th of August, 1853. The plaintiff, therefore, acquired the estate according to the will on the decease of the second son, free and discharged from the widow’s annuity. It was admitted on the trial that William Jones Clason appeared by the record title to the property in suit to have received a deed of the same on the 11th of March, 1873. And that the record, if produced, would show title in his grantor at the time of such conveyance, and that production of the record was waived by the defendant. That admission, with the. other evidence to which reference has been made, vested the plaintiff with the title to this land. But it was objected that she could not maintain this action to recover its possession without additional evidence that actual possession had been taken of the land under the title appearing by the record.

But that is not the law, where the plaintiff appears to be the owner of the land by a title, as this was, in no way depending upon the fact of possession. If the deed to the plaintiff’s ancestor had been executed by a person not appearing to be vested with the title, then possession by him would have been a necessary factor in the way of proving title. But when the title is shown, as it was by this record, to have been derived successively from the original owner, there it is accompanied with a right of possession which secures to the apparent owner the constructive possession and the right to recover it by an action of ejectment from a person withholding it without title. That is conceded and assumed in the authorities cited to support the appeal, Miller v. Long Island R. R. Co., 71 N. Y., 380; Dunham v. Townshend, 118 id., 281; 28 N. Y. State Rep., 864; Cagger v. Lansing, 64 N. Y., 417, and is without doubt the well established law.

The premises in suit were occupied by tenants who were not made defendants, and not by the defendant herself. And as § 1502 of the Code of Civil Procedure has required the occupant to be made a defendant, it is objected that the action cannot be maintained. But by § 1503 the defendant, as the asserted landlady, could also be made a defendant in the action. And if she desired the actual occupants to be joined with her as defendants, her remedy to secure that end was to set up by way of answer this non-joinder of the occupants, as the complaint itself did not disclose the defect. That she has failed to do, and that failure deprived her of the right to insist on this objection. Code Civ. Pro., .§§ 488,498-9; Finnegan v. Carraher, 47 N.Y., 493. This objection as well as the one previously considered was, therefore, rightly overruled at the trial.

There was evidence in the case that the defendant had rented and collected the rent of considerable portions of the premises. And that evidence related to at least one tenancy created before the commencement of the suit. Under this evidence the question was submitted to the jury, whether the defendant was in fact in possession of the premises. They found the fact against her and their verdict as the evidence stood is entitled to be sustained.

Exceptions were taken to portions of the charge which related to the right of the plaintiff to recover the land. But neither of them seems to be well founded, and they require no further consideration for the decision of this part of the appeal. She was proved to be the owner, and as there was sufficient evidence to render the fact of possession a question for the jury to decide, and that was found in her favor, the judgment awarding the recovery of possession to her was fully warranted.

The plaintiff was also held to be entitled to recover the damages for withholding possession from the time of the commencement of the action, and those damages have been included in the verdict and j udgment. But that cause of action was not set out in the complaint It stated no more than the facts of her own seizin, with a description of the property, followed by the allegation that the possession was wrongfully withheld by the defendant. That was not sufficient to entitle the plaintiff to these damages, although damages were included in the demand for judgment. Larned v. Hudson, 57 N. Y., 151.

The damages accruing after the commencement of the action were considered not to be within the principle of this decision. But there seems to be no good reason for the distinction. It is as important that the right to recover the damages after the action has been commenced should be made to appear by the complaint, as it is that it should lay the foundation for such damages as accrue previous to the event, to entitle the plaintiff to recover them. The defendant was to be informed of the fact, to supply her with an opportunity to .be prepared with proof, if that could be obtained, to contest it upon the trial. That was not secured in this instance. And both the evidence proving the damages and the ruling allowing their recovery, were erroneously sanctioned at the trial.

The judgment should, therefore, be modified by setting aside and reversing so much as permits the recovery of these damages, and as modified affirmed, without costs of the appeal to either party.

Van Brunt, P. J., and O’Brien, J., concur.  