Ely v. Ballantine
New York Supreme Court
The defendant moved to strike out two counts in a declaration, in an action of ejectment commenced under the revised statutes, on the ground of the pendency of a previous action of ejectment for the same premises, in which the same persons named as plaintiffs in those counts were named as lessors of the plaintiff in the previous action, which is in the name of James Jackson, as nominal plaintiff, according to the former practice.
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The defendant moved to strike out two counts in a declaration, in an action of ejectment commenced under the revised statutes, on the ground of the pendency of a previous action of ejectment for the same premises, in which the same persons named as plaintiffs in those counts were named as lessors of the plaintiff in the previous action, which is in the name of James Jackson, as nominal plaintiff, according to the former practice. The plaintiff resisted the motion, alleging that the counts moved to be stricken out were inserted in the declaration to prevent an anticipated objection to a…
1Opinion of the Court
By the Court,
Sutherland, J.
The counts moved to be stricken out may be necessary to enable the plaintiff to recover, and must be retained. If not retained, the recovery may be defeated by shewing a conveyance out of Ely, the plaintiff named in the first count; and although there cannot be a re*471covery in the names of the persons stated as plaintifis in the counts asked to be stricken out, if at the time of the conveyanee to them the premises were held adversely, still if named as plaintifis, and adverse possession is insisted on as rendering the conveyances to them inoperative, there can be a…
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