Woodhull v. . Rosenthal
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff, entered on the report of a referee. This was an action of ejectment, brought by the. plaintiff as tenant in possession, for the term of thirteen years, from May 1, 1856, of the rear part of lot 189, Church street, Hew York city; and being also in the rear of thirty-seven White street.
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Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff, entered on the report of a referee. This was an action of ejectment, brought by the. plaintiff as tenant in possession, for the term of thirteen years, from May 1, 1856, of the rear part of lot 189, Church street, Hew York city; and being also in the rear of thirty-seven White street. The complaint alleged that on February 1st, 1866, the defendants wrongfully entered into, and still withhold possession of the same from the plaintiff, to his damage $3,000;…
1Opinion of the Court
Dwight, C.
The defendants rely upon a number of propositions which they deem fatal to the plaintiff’s case.
I. They claim that the plaintiff cannot recover, because the sheriff could not deliver possession.
This is a misconception of a well known rule of law that where the property is not, in its own nature, capable jof physical possession, an action of ejectment will not lie. A common example is an easement or other incorporeal hereditament. (Child v. Chappell, 9 N. Y., 246; Rowan v. Kelsey, 18 Barb., 484; C. and St. Law. R. R. Co. v. Valentine, 19 id., 484.) These cases lend no countenance to…
2Cases cited16 opinions
- Green v. BiddleSupreme Court of the United States · 1823
- TUCKER v. MorelandSupreme Court of the United States · 1836
- Gayetty v. BethuneMassachusetts Supreme Judicial Court · 1817
- Trull v. . GrangerNew York Court of Appeals · 1853
- Leonard v. WhiteMassachusetts Supreme Judicial Court · 1810
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3Cited by75 opinions
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- Gresham v. WareSupreme Court of Alabama · 1885
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