TITLE XX X.

OF SUITS RELATING TO REAL PROPERTY.

CHAPTER CXXXIV. Of the Action of Ejectment.

CHAPTER CXXXV. Of the Partition of Lands owned by Several Persons.

CHAPTER CXXXVI. Of Waste.

CHAPTER CXXXVII. Of Trespasses on Lands.

CHAPTER CXXXVIII. Of Actions for Private Nuisances.

CHAPTER CXXXIX. General Provisions Concerning Actions relating to Real Estate.

CHAPTER CXXXIV.

OF THE ACTION O F EJECTMENT.

R. 8. of N. Y.,
Title 1, Chap. 5,
Part 3.

Ejectment re-
tained.

Extended to

other cases. 10 Wend., 104.

Dower.

9 Wend., 809. 10 do. 531.

Who to be plaintiffs.

Who to be defendants.

SECTION

4590. Effect of judgment by default; New trial.
4591. Rules in relation to staying proceedings.
4592. Time of disability not to be included.
4593. Death of person during continuance of
disability.

4594. Possesion after recovery on new trial.
4595. Evidence on new trial.

4596. Damages to be recovered.
4597. Mode of recovery, suggestion, etc.
4598. Form of suggestion, etc.

4599. Pleadings of Defendant, etc.

4600. Trial of issues, etc.

4601. Facts to be established by Plaintiff.

4602. Set off by Defendant.

4603. In what cases Defendant to be allowed

value of buildings, etc.

4604. Estimating value of improvements and
value of premises.

SECTION

4605. Plaintiff may abandon premises and take judgment for value; Such judgment to be

a lien.

4606. Plaintiff may pay value of improvements
within one year; Effect of neglect.
4607. Extent of recovery for rents, etc.
4608. Assessing damages on default, etc.
4609. Proceedings on assessing damages.
4610. Judgment.

4611. Proceedings to recover mesne profits on

death of Plaintiff.

4612. Proceedings on recovery of dower not

previously admeasured.

4613. Costs of admeasurement of dower.

4614. Ejectment by Mortgagee, etc.

4615. No Jury required in actions of ejectment unless demanded by the parties, or ordered by the Court.

Chapter One Hundred and Eight of Revised Statutes of 1846.

(4554.) SECTION 1. The action of ejectment is retained, and may be brought in the cases and in the manner heretofore accustomed, subject to the provisions hereinafter contained.

(4555.) SEC. 2. The action of ejectment may also be brought: 1. In the same cases in which a writ of right may now be brought by law to recover lands, tenements, or hereditaments, and by any person claiming an estate therein, in fee or for life, either as heir, devisee or purchaser;

2. By any widow entitled to dower, or by a woman so entitled and her husband, after the expiration of six months from the time her right accrued, to recover her dower of any lands, tenements or hereditaments.

(4556.) SEC. 3. No person can recover in ejectment, unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial.

(4557.) SEC. 4. If the premises for which the action is 12 Wed., 560. brought, are actually occupied by any person, such actual

5 Hill, 48.

How commenced,
ete.
5 Hill, 554.

occupant shall be named a defendant in the declaration; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein at the commencement of the suit; and all persons claiming any title to the premises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action.

(4558.) SEC. 5. The suit shall be commenced by the filing of a declaration, entering a rule to plead, and serving of a copy of

214.

the declaration and notice of the rule to plead, in the same 1 Howard, P. R., manner as in personal actions, except as hereinafter provided; and in such declaration the names of the real claimants shall be inserted as plaintiffs, and all the former provisions of law concerning lessors of a plaintiff shall apply to such plaintiffs. (4559.) SEC. 6. The use of fictitious names of plaintiffs or Fictitious parties, defendants, and of the names of any other than the real abolished. claimants and the real defendants, and the statement of any lease or demise to the plaintiff, and of an ejectment by a casual or nominal ejector, are abolished.

demises, etc.,

claration.

12 do. 170.

(4560.) SEc. 7. It shall be sufficient for the plaintiff to aver contents of dein his declaration, that on some day therein to be specified, to Wend., 414. and which shall be after his title or right accrued, he was possessed of the premises in question, describing them as hereinafter provided, and being so possessed thereof that the defendant afterwards, on some day to be stated, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to his damage, any nominal sum the plaintiff shall think proper to state. (4561.) SEC. 8. In such declaration the premises claimed Premises claimed, shall be described with such convenient certainty, by setting forth the section or part of a section, township and range, or the number of the lot, or otherwise, that from such description possession of the premises claimed may be delivered. (4562.) SEC. 9. If such plaintiff claims an undivided share undivided or interest in any premises, he shall state the same particularly in such declaration.

how described.

shares.

tiff.

11 do. 594. do. 139.

Hill, 171. 6 do. 634.

(4563.) SEc. 10. If the action be brought for the recovery Estate of plainof dower, the declaration shall state that the plaintiff was Wend., 309. possessed of the one undivided third part of the premises, as 12 her reasonable dower as widow of her husband, naming him. 1 15 m. Rep., 178. In every other case the plaintiff shall state whether he claims in fee, or whether he claims for his own life, or for the life of another, or for a term of years, or otherwise, specifying such lives, or the duration of such term.

and plaintiffs.

(4564.) SEC. 11. In any case other than where the action is several counts brought for the recovery of dower, the declaration may 7 Wend, 470. contain several counts, and several parties may be named as plaintiffs, jointly in one count, and separately in others.

1 Hill, 359.

(4565.) SEC. 12. All the provisions of law relating to the security for endorsement of declarations as security for costs, and the costs, liability of endorsers in cases of personal actions, commenced by declaration, shall be applicable to the action of ejectment.

Service of decla

ration, etc., on occupant.

2 Howard, P. R., 100.

(4566.) SEC. 13. If the premises are actually occupied, the declaration shall be served by delivering a copy thereof, with the notice above prescribed, to the defendant named therein, who shall be in the occupation thereof, personally, or by leaving the same with some person of proper age, at the dwelling house of such defendant, if he be absent.

Service of decla...

ration, etc., when

pied.

(4567.) SEC. 14. If any defendant named in such declaration premises unoccu- shall not occupy the premises claimed, the declaration and notice shall be served on such defendant personally, or if he cannot be found, by leaving the same with some person of proper age, at the residence of such defendant.

Court when neeessary.

12 Wend., 180.

When and how appearance and

entered.

(4568.) SEC. 15. But when the declaration shall have been served in any other manner than upon the defendant personally, no default for not pleading shall be entered without the special order of the Court.

(4569.) SEC. 16. Upon filing the certificate of the Sheriff, or default may be an affidavit of the due service of a copy of the declaration and notice of the rule to plead personally on the defendant, his appearance shall be entered; and in case he shall neglect to plead within the time prescribed by such rule, his default for not pleading may be entered in like manner as in personal actions.

Application to compel plaintiff's

duce authority. 10 Wend., 568.

(4570.) SEC. 17. A defendant in ejectment may, at any time Attorney to pro- before pleading, apply to the Court, or to any Judge thereof, or Circuit Court Commissioner, in vacation, to compel the Attorney for the plaintiff to produce to such Court or officer, his authority for commencing the action in the name of any plaintiff therein.

Affidavit to be made.

Order on application.

(4571.) SEC. 18. Such application shall be accompanied by an affidavit of the defendant, that he has not been served with proof in any way, of the authority of the Attorney to use the names of the plaintiffs stated in the declaration.

(4572.) SEC. 19. Upon such application, the Court or officer 2 Howard, P. R., shall grant an order requiring the production of such authority, and shall stay all proceedings in the action, until the same be produced.

86.
2 Denio, 187.

Evidence of authority.

(4573.) SEC. 20. Any written request of such plaintiff or his agent, to commence such action, or any written recognition of the authority of the Attorney to commence the same, or any verbal authority, duly proved by the affidavit of such Attorney or other competent witness, shall be sufficient presumptive evidence of such authority.

(4574.) SEC. 21. If it shall appear that previous to such

.

to be dismissed,

application by any defendant, he was served with the affidavit When application of the plaintiff's Attorney, showing his authority to commence and defendant to such action, such application shall be dismissed, and such pay costs, etc. defendant shall be liable for the costs of resisting such

application, the payment of which may be compelled by attachment as in other cases, which may be issued upon proof

of disobedience to the order of the Court or officer directing the payment of such costs.

6 McLean R., 11.

3 Cowen, 75.

(4575.) SEC. 22. The defendant may demur to the declaration Pleadings, etc. as in personal actions; or he shall plead the general issue 2 Hill, 478. only, which shall be the same as in personal actions, and the filing and service of such plea or demurrer shall be deemed an appearance in the cause, and upon such plea the defendant may give the same matter in evidence, and the same proceedings shall be had, as upon the plea of not guilty in the present action of ejectment.

sion sufficient,

(4576.) SEc. 23. Upon such plea, the defendant may give in Evidence under evidence any matter which, if pleaded in the present writ of" right or action of dower, would bar the action of the plaintiff. (4577) SEC. 24. It shall not be necessary for the plaintiff to Right to possesprove an actual entry under title, nor the actual receipt of any etc profits of the premises demanded; but it shall be sufficient for him to show a right to the possession of such premises, at the time of the commencement of the suit, as heir, devisee purchaser or otherwise.

ouster, etc.

(4578.) SEc. 25. It shall not be necessary on the trial for the Lease, entry and defendant to confess, nor the plaintiff to prove, lease, entry and ouster, or either of them, except as provided in the next section; but this section shall not be construed to impair, nor in any way to affect, any of the rules of evidence now in force, in regard to the maintenance and defence of the action. (4579.) SEC. 26. If the action be brought by one or more Ouster to be provtenants in common, or joint tenants, against their co-tenants, the plaintiff, in addition to all other evidence which he may 531. be bound to give, shall be required to prove on the trial of the cause, that the defendant actually ousted such plaintiff, or did some other act amounting to a total denial of his right as such co-tenant.

ed in certain ca

ses.

10 Wend., 414,

joint possession,

(4580.) SEC. 27. If the action be brought against several Verdict upon defendants, and a joint possession or claim of title of all be etc. proved, the plaintiff shall be entitled to a verdict against all, whether they shall have pleaded separately or jointly.