Howarth v. Howarth
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Stanley Howarth, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 11th day of April, 1901, upon the decision of the court, rendered after a trial at. the Albany Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.
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Appeal by the plaintiff, Stanley Howarth, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 11th day of April, 1901, upon the decision of the court, rendered after a trial at. the Albany Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint. The plaintiff’s complaint states in substance that one Sarah L, Howarth, at her death, was in possession and ownership of certaim real estate; that she died intestate, leaving the plaintiff and defendant as her only heirs and next of…
1Opinion of the Court
Smith, J.:
While we do not agree with the learned judge at Special Term in the ground upon which he placed his decision, we, nevertheless, are of opinion that the demurrer was properly sustained by reason of *356the fact that the allegations of the complaint do not establish a -cause of action. . The plaintiff is not alleged to have been in possession of the premises. He, therefore, can bring no action to remove a cloud from title. (See Moores v. Townshend, 102 N. Y. 387; Code Civ. Proc. § 1638.) His action cannot be deemed one in ejectment and to remove a cloud from title as incidental thereto,…
2Cases cited2 opinions
- Moores v. . TownshendNew York Court of Appeals · 1886
- Everitt v. . ConklinNew York Court of Appeals · 1882
3Cited by2 opinions
- O'Donohue v. SmithAppellate Division of the Supreme Court of the State of New York · 1909
- Letson v. LetsonAppellate Division of the Supreme Court of the State of New York · 1903