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erty claimed, then a general verdict for the recovery of the whole property would be sufficient. If only a moiety belonged to them, collectively, a general verdict for such moiety would be proper (Wood v. Staniels, 3 Code Rep. 152). Where the plaintiff proves title to a smaller quantity of land than he has claimed in his complaint, he may recover according to the proof, and the complaint may be amended accordingly (Kellogg v. Kellogg, 6 Barb. 116; and see 2 Barb, 156, 330, 643). And where in an action against four defendants to recover the possession of land, the complaint stated that one of them unjustly claimed title to the premises, and the others were in possession under him, and that the defendants unjustly withheld the possession from the plaintiff; the answer merely denied the allegation as to withholding possession, and alleged that the one defendant was the owner of and entitled to the premises; on the trial it was proved by the defendants, subject to objection, that they occupied, severally, distinct parcels of the premises,-held, that under the pleadings, the plaintiff was entitled to recover against all the defendants. If there was an improper joinder of parties, the objection should have been raised by demurrer or answer (Fosgate v. Herkimer Manufacturing Co. 12 N. Y. 580).

a. Execution.-The court will not, on motion of the plaintiff, order the sheriff to execute a writ of habere facias possessionem in a particular manner (Bowie v. Brahe, 4 Duer, 676; 2 Abb. 161). Stay of execution (The People v. Lee, 7 How. 49).

6. Where the plaintiff fails in an action for the recovery of real property, and for damages for the withholding, he is not liable on there turn of an execution unsatisfied, to an execution against his person for the costs of the action (Merritt v. Carpenter, 2 Keyes, 462).

c. Receiver.—The court will not, pending an action of ejectment, at the instance of the plaintiff, appoint a receiver of the rents of the premises in suit (Thompson v. Sherrard, 35 Barb 593; 12 Abb. 426; 22 How. 155; The People v. Mayor &c. of N. Y. 10 Abb. 111; and see Willis v. Corlies, 2 Edw. Ch. R. 281; Congden v. Lee, 3 id. 304; Parker v. Moore, id. 234; Cairns v. Chabert, id. 312). In Ireland v. Nichols (37 How. 222), the superior court, New York, made an order for a receiver. The case was somewhat peculiar, and it may probably be regarded rather as an exception to than a recision of the rule that a receiver will not be ordered in ejectment.

d. Injunction.—Restraining action of ejectment by injunction (Sieman v. Austin, 33 Barb. 9).

e. Waste.-Restraining waste pending the action (The People v. Davison, 4 Barb. 109).

f. Staying proceedings till costs of previous action paid. -An action of ejectment by several heirs is not for the same cause and between the same parties as an action by one of the heirs, and the proceedings in the action by several cannot be stayed until the costs of an unsuccessful action by one of the heirs is paid (Ten Broeck v. Reynolds, 13 How. 462; \ante, p. 482 b).

9. Ejectment by purchaser on sale under an execution.— To recover in ejectment, under a purchase at a sheriff's sale on a judgment against the defendant, it is sufficient for the plaintiff to show the defendant in possession at the time of the recovery of the judgment against him, and a continued possession in him from that time to the commencement of the action, and that the plaintiff acquired the title of the defendant, under the sheriff's sale (Kellogg v. Kellogg, 6 Barb. 116; Dickinson v. Smith, 25 Barb. 102; Bigelow v. Finch, 11 Barb. 498; Smith v. Colvin, 17 Barb. 157). The plaintiff must prove a judgment, and that a judgment-roll has been filed (Townshend v. Wesson, 4 Duer, 342; and see 11 Barb. 498; 25 id. 103; 2 N. Y. 273).

h. Ejectment on surrogate's decree.-As to ejectment by a purchaser at a sale under a surrogate's decree, see Sibley v. Waffle (16 N. Y. 180).

i. Ejectment for dower, against whom it will lie.-Eject

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ment to recover dower will lie against a tenant who has an estate or interest less than a freehold, and before dower has been assigned. It must be brought against the actual occupant of the land (Ellicott v. Mosier, 7 N. Y. 201). It is not necessary that she demand her dower before bringing her action (id.) Where she claims dower in a block of lots, she may maintain her action against the occupant of a single floor of a house, erected upon one of the lots, who has hired such floor of the owner for a single year (id.)

a. Defense.-To bar the widow of her action for dower, where rent has been assigned with her consent and accepted by her, it must appear that the rent will endure for her life (Ellicott v. Mosier, 7 N. Y. 201). And in ejectment for dower after admeasurement, the defendant may controvert the title of the husband, his seizin, the plaintiff's marriage [and the death of the husband] (Parks v. Hardy, 4 Bradf. Sur. Rep. 15; and see Sparrow v. Kingman, 1 N. Y. 242; Finn v. Sleight, 8 Barb. 401; Poor v. Horton, 15 Barb. 486).

b. Offer.-In an action for dower, an offer of judgment for five and a half acres of the land claimed without further description is too indefinite (Marble v. Lewis, 53 Barb. 432).

c. Damages. In an action to recover dower and damages for the rents and profits, where the premises were aliened during the lifetime of the husband, the damages can be recovered only from the time dower was demanded (Marble v. Lewis, 36 How. 337).

d. Limitation in action to recover dower.-(Brewster v. Brewster, 32 Barb. 428).

e. Counter-claim in action for dower.-(Ellicott v. Gibbons, 30 Barb. 498; Bogardus v. Parker, 7 How. 303).

f. Admeasurement of dower-Proceedings for, before surrogate. (See Board v. Board, 4 Abb. 295; Parks v. Hardy, 4 Bradf. Sur. Rep. 15); notice to owner before admeasurement (Stewart v. Smith, 1 Keyes, 59).

g. Complaint for admeasurement of dower.-A complaint asking to have dower set off and admeasured, is to be regarded as a substitute for the former petition for admeasurement, or the former bill in equity; and is not objectionable on the ground that the defendant was not in the actual possession of the lands, or that six months had not elapsed since the death of the husband (Townsend v. Townsend, 2 Sand. 711; Stewart v. Smith, 39 Barb. 167); and as to parties to such action, see Van Name v. Van Name, 23 How. 247; see also Wood v. Seely, 32 N. Y. 105. An equitable action for the admeasurement of dower is sustainable, and in such action the court may appoint a referee to admeasure dower, and assess damages for loss of rents and profits (Brown v. Brown, 4 Rob. 688; 31 How. 481).

h. Sale of real estate to pay dower, see Laws 1870, ch. 717.

i. Ejectment for lands ceded to the United States, see Dibble v. Clapp, 31 How. 420.


Provisions relating to Existing Suits.

SECTION 456. Appeal from order at special term, on a summar y application after judgment.

457. Writ of error abolished, and appeal substituted.

458. Execution on judgment docketed prior to July 1, 1848.

459. Application of this act to actions pending. Extraordinary


460. Appeal from certain final decrees allowed.
461. Issue of fact in county court, how tried.

$456. Appeal from order at a special term, on summary application after judgment.

The appeal mentioned in section 9 of the act to facilitate the determination of existing suits in the courts of this State, may also be taken from an order made at special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof.


Laws 1849, ch. 439.

$ 457. Writ of error abolished.


No writ of error shall be hereafter issued in any case whatWherever a right now exists to have a review of a judgment rendered, or order or decree made, before the first day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act; and all appeals heretofore taken from such judgments, orders, or decrees, under the provisions of the code of procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

a. This section authorizes a review only in cases where the judgment, decree, or order appealed from, was entered before the code was passed, and where a right of review existed by the previous law (Dunlop v. Edwards, 3 Code Rep. 197).

$458. Execution on judgment docketed before July, 1848. An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an action pending on that day, at any time within five years after the rendering of the judgment.

See sections 283, 284.

$459. (Am'd 1851.) Application of this act to actions pending. Extraordinary terms.

The provisions of this act apply to future proceedings in actions or suits heretofore commenced, and now pending, as follows: 1. If there have been no pleading therein, to the pleadings and all subsequent proceedings;

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings;

3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal. Whenever the judges of the supreme court in any district find that the court, at any term or circuit, has not been, or will not be, able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits, for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold the courts accordingly.

a. This section applies to a notice of trial (Reynolds v. Davis, 2 Abb. 163; and see Fellows v. Emperor, 13 Barb. 92; Fielden v. Lahens, 3 Trans. App. 223).

$460. (Am'd 1851, 1852, 1858.) Appeal from certain final decrees allowed.

An appeal may be taken from any final decree entered upon the direction of a single judge, in any suit in equity pending in the supreme court, on the first day of July, 1847, at any time before the first day of November, 1852. But this provision shall not apply to cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been or shall have been made within thirty days after notice of the

entry of such decree. Such appeal shall be taken in the manner provided in sections 327 and 348. In all cases of appeal to the court of appeals, in actions which were originally commenced in the late court of chancery of this State, the court of appeals shall review the cause upon the facts and the law, without any statement or specification of facts found, or any exception taken at the trial of any or either of them. And it shall be, and is hereby declared to be, the duty of the court of appeals, in any and all such cases, to review the whole matter upon the evidence as well as the law.

a. This section is not unconstitutional; it is merely a provision extending the time for bringing an appeal. It affects the remedy only (Burch v. Newbury, 4 How. 145; 10 N. Y. 374; and see Mason v. Jones, 1 Code Rep. N. S. 335).

b. In an equity suit commenced before the code took effect, the mode of reviewing a decision of a single judge is by an appeal, and not by a rehearing (Gilchrist v. Stevenson, 7 How. 273).

c. An action commenced under the judiciary act, in the supreme court in equity, is not an action "commenced in the late court of chancery," so as to admit a review of the evidence under this section (Griffith v. Merritt, 19 N. Y. 529; see McIntyre v. Warren, 3 Keyes, 185).

§ 461. Issue of fact in county court, how tried.

An issue of fact joined in a county court, or court of common. pleas, before the first day of July, 1848, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree.

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