Halsey v. Gerdes
New York Supreme Court
Demurrer to complaint. Fanny Halsey sued John F. Gerdes in ejectment for certain premises in the city of New York. . The complaint alleged ‘1 That the plaintiff is seized in fee of the following described premises (describing them). That the defendants are in possession thereof and withhold the same from her,” and demanded judgment: I. For the possession of said premises. II. For the sum of $1,000, plaintiff’s damages by the withholding of the same.”
1Opinion of the CourtBarrett, J.
—The case upon which defendants rely (Moores v. Lehman, 52 Super. CL [J. & S.] 283), is not supported by the authorities. It is well settled that an allegation of “seizin in fee,” followed by an averment of an unlawful withholding, is sufficient on .general demurrer (Ensign v. Sherman, 14 How. Pr. 439; Sanders v. Leavy, 16 How. Pr. 308; Walter v. Lockwood, 23 Barb. 228). Here the word “ unlawfully ” is omitted, but it may be treated as a conclusion of law or as surplusage (Payne v. Treadwell, 16 Cal. 220). The averment of seizin in fee is equivalent to an averment of the right to immediate…
2Cases cited5 opinions
- Payne & Dewey v. TreadwellCalifornia Supreme Court · 1860
- Jenkins v. . FaheyNew York Court of Appeals · 1878
- Walter v. LockwoodNew York Supreme Court · 1856
- Ensign v. ShermanNew York Supreme Court · 1857
- Sanders v. LeavyNew York Supreme Court · 1858
3Cited by2 opinions
- Church v. HempstedAppellate Division of the Supreme Court of the State of New York · 1898
- Church v. HempstedAppellate Division of the Supreme Court of the State of New York · 1898