Opinion
November 20, 1908.
Frederick W. Block, for the appellant.
Max Schleimer, for the respondent.
This is an action under sections 1638 and 1639 of the Code of Civil Procedure to determine an adverse claim to real estate. The complaint was dismissed at the trial for not stating facts sufficient, in that there is no allegation that the plaintiff has been in possession of the land for one year. The allegation is that the plaintiff is and has been for more than one year "seized" and "possessed" of the land; but this is followed by an allegation that the land is "vacant and not actually occupied". Nevertheless the complaint is good, for possession is alleged, and constructive possession suffices. The said statute at first required "actual possession"; but by amendment in 1891 (Chap. 210, L. of 1891) the word "actual" was omitted. The phrase was used in the opposite sense of "possession in law, or constructive possession" ( Churchill v. Onderdonk, 59 N.Y. 134). The illustration in Clason v. Stewart ( 23 Misc. Rep. 177) of constructive possession, in reference to this change in the statute, viz., "showing that a constructive possession, as through tenants, is sufficient", was inadvertent, for possession through a tenant would be actual possession.
The order should be reversed.
WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements.