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That the plaintiff was the owner and in possession of1 the following goods and chattels, that is to say, [describing them], of the value of $275. And being so in possession, the defendant, on the at, &c., without the plaintiff's consent, and wrongfully, took said goods from the possession of the plaintiff, and wrongfully detains the same.

Wherefore the plaintiff demands that the defendant may be adjudged to deliver to the plaintiff the said goods and chattels, and to pay the plaintiff damages, for the detention thereof, to the sum of $50, besides costs.2

C. L. BEALE,

Plaintiff's Attorney.

aver a demand of the goods, or an allegation of any of the facts going to establish the fraud. (Hunter v. The Hudson River Iron and Machine Co., 20 Barb., 493.)

But if the defendant came in possession of the property by the "delivery of the wrong-doer," though only as his assignee, in trust for creditors, and merely detains it, a demand and refusal are issuable facts, necessary to sustain the action, and must be alleged in the complaint. So held in Fuller and others v. Lewis (13 How., 219), per CLERKE, J.

1 The plaintiff's title may generally be set forth the same as in actions for converting personal property. (See Nos. 70 and 71; see, also, as to what the complaint, in such cases, must contain, Pleadings, 277. 280.)

2 An injunction may be granted, in a proper case, in aid of an action to recover the possession of personal property, in which case the complaint should state the facts showing the plaintiff's right to the injunction, and it should be demanded in the prayer for relief. (See a complaint so drawn, No. 24, Part II., ante, p. 132, and cases cited in note.)

(No. 73.)

To recover possession of real estate, with damages for withholding the same.1

SUPREME COURT-RENSSELAER COUNTY.

John W. Witbeck

agt.

John K. Defreest.

The plaintiff complains of the defendant, and states the following facts constituting his cause of action:

'It is held, at General Term in the sixth district, in Walter v. Lockwood (4 Abbott, 307), that the complaint in an action to recover possession of real estate need not be drawn in the form prescribed by the Revised Statutes in an action of ejectment; but that both complaint and answer, in such actions, should conform to the rules of pleading laid down in the Code; and their sufficiency must be tested by the Code, and not by the Revised Statutes.

This is, to some extent, sustained by the General Term of the second district, in Ensign v. Sherman (14 How., 439, reversing the same case at Special Term, 13 How., 35), holding that a complaint for possession of real estate valid, which alleges that the plaintiff “had lawful title as owner in fee simple," to the premises described, and that the defendant "is in possession of said real estate, and unlawfully withholds the possession of the same from the plaintiff,” without alleging that the plaintiff was ever in possession, and that the defendant subsequently entered.

Neither of these cases, however, hold that the simple provisions of the statute, relative to an action of ejectment, may not be followed, if the pleader prefer, where the allegations of the pleading correspond substantially to the fact to be proved. The precedent, given in the text, is so drawn. In the reported case above referred to (Walter v. Lockwood, 4 Abbott, 307) will be found one drawn without reference to the statute.

It may be added that, in Warner v. Nelligar (12 How., 402), a Special Term decision, it is held that the provisions of the Statutes,

That on and after the 25th day of October, A. D. 1828, he was lawfully possessed of the premises and land hereinafter described, situated in the town of Greenbush, county of Rensselaer, claiming to hold the said premises in fee; and being so possessed, the defendant afterwards, to wit, on or about the 1st day of January, 1840, entered into such premises, and that he unlawfully withholds from said plaintiff the possession thereof, to the plaintiff's damage of $100.

The premises, so entered upon by the defendant, and unlawfully withheld from the plaintiff, are a part of the land and premises mentioned in a certain conveyance, &c., [describing the premises.]

Wherefore the plaintiff demands judgment against the defendant, that the said defendant do forthwith deliver up to the plaintiff the said premises so withheld, and, also, pay the plaintiff the damages he has sustained as aforesaid, by reason of the withholding of said premises, in the sum of $100, and his costs of action.

S. & V. S.,

Plaintiff's Attorneys.

relative to the action of ejectment, apply to complaints under the Code. (See, also, Pleadings, 297, 298.) So, also, in St. John v. Price (22 Barb., 362), at General Term in the seventh district, it is held that the general provisions of the Revised Statutes relating to actions concerning real estate, where no specific inconsistent provision is made in the Code on the same subject, remain in force, and are to be applied and adapted to actions now brought. But in that case it was decided that the provision authorizing the declaration to contain several counts, and that several parties might be named jointly in one count and separately in others, was repealed, as being plainly inconsistent with the provisions of the Code respecting parties to the action, the form of action, &c.

See post, No. 86, a complaint in which a claim to recover from a railroad company possession of a part of a highway, exclusively appropriated to the purposes of the railroad, is joined with a cause of action for damages, actual and consequential, for the same entry.

(13.) MISCELLANEOUS CASES AGAINST RAILROAD COMPANIES.

(No. 74.)

Against a railroad company, for damages occasioned by its neglect to erect and maintain suitable fences and cattleguards.

SUPREME COURT-RENSSELAER COUNTY.

George Sims
agt.

The Troy and Boston Railroad Company.

The plaintiff complains of the defendants, the said The Troy and Boston Railroad Company, a corporation duly organized under the laws of the State of New-York:

That said defendants' railroad commences in the city of Troy, in said county, and runs from thence, northerly, through the town of Lansingburgh and other towns of said county.

That on or about the month of August, 1852, this plaintiff's horse was lawfully pasturing upon lands in the said city of Troy, lying alongside of and adjoining said railroad; and that at the time of the injury, hereinafter mentioned, the said defendants had not erected or maintained, as they were bound to do, on the sides of said railroad, adjoining and opposite the said land whereon the plaintiff's said horse was pasturing, as aforesaid, fences, as required by

1 For precedents of complaints to enforce various obligations against railroad corporations, see Part I., No. 6, p. 26; Part II., No. 12, p. 78; No. 13, p. 81; No. 25, p. 135; also Part III., No. 20, p. 395; No. 64, p. 481; No. 68, p. 488.

2 This is unnecessary. (See ante p. 473, and note.)

law, nor had they constructed or maintained cattle-guards at any or either of the road crossings along their said road (there being several of the same), suitable or sufficient to prevent cattle or animals from getting on to said railroad, as required by law; and that, by reason of the said defendants' neglect so to erect and maintain such fences and cattle-guards, as aforesaid, the said horse, while so lawfully pasturing on said land, as aforesaid, and on or about said month of August, 1852, escaped from said land on to said railroad, and was then and there run upon and over by the defendants' locomotive engine, under the direction of said defendants' agents and servants, and by cars drawn by said engine, and was thereby killed; and that said horse, at the time he was killed, as aforesaid, was worth the sum of $150.

Wherefore the plaintiff demands judgment against said defendants for that amount, with interest thereon from the 1st day of September, 1852, with costs, &c.

PIERSON, BEACH & SMITH,

Plaintiff's Attorneys.

(No. 75.)

Against a railroad company for wrongfully ejecting a passenger from its cars.

SUPREME COURT-RENSSELAER COUNTY.

Philip Cummins
agt.

The Troy and Boston Railroad Company.

The plaintiff complains of the above defendants, the Troy and Boston Railroad Company, and says:

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