Opinion
February, 1904.
Arthur Knox, for the appellant.
Frederick H. Kellogg, for the respondent.
It is evident that the plaintiff has alleged two causes of action: one for ejectment and for damages for withholding possession, and the other for damages for the breach of a covenant of quiet enjoyment contained in the lease and for the eviction. The appellant was, therefore, entitled to have these causes of action separately stated and numbered. (Code Civ. Proc. § 483.)
The complaint should also be made more definite and certain. This was a lease for ten years which would be void if not in writing. The allegations of subdivision 4 of the complaint are indefinite in that they do not definitely show whether the lease was executed by the widow as executrix or by virtue of a power granted by the will or individually, or in form as the agent or attorney in fact for the other defendants as well as individually, or whether the alleged consent, authorization and acquiescence on the part of the other defendants was in writing or parol. These are facts which the appellant is entitled to have specifically stated in the complaint. A bill of particulars concerning them might not suffice. They are facts which the appellant is entitled to have alleged that she may avail herself of the remedy by demurrer or answer and thus raise any question that may arise thereon. These observations are equally applicable to subdivision 8 of the complaint, and the allegations thereof should also be amended so as to show whether the widow in form made the covenant individually, or as agent or attorney in fact for the other defendants, and whether her authority to act in that regard for the other defendants was in writing.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion granted for the relief as indicated in this opinion, with ten dollars costs.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs.