remedy, and is therefore repealed by the Code, as being inconsistent with its provisions respecting the parties to actions, the form of actions, and with the whole scope of the Code. The court held, that those provisions of the Code are in conflict with the theory of separate counts in the name of separate plaintiffs, for the same cause of action, as in the former action of ejectment, and of separate counts in favor of the same plaintiff, for the same cause of action, as in other actions. And, further, that the intent of section four hundred and fifty-five of the Code was, that the change made in the form of the remedy should not affect any substantial right nor change any provisions relating to the remedy that can be adapted to and applied under the Code, in perfect consistency therewith. (St. John v. Pierce, 22 Barb. R. 362.) This case in Barbour, however, holds that all the general provisions in the Revised Statutes relating to 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 the actions under the Code. But it is confidently affirmed, that the provisions in the Code prescribing the manner of commencing and conducting suits and of receiving and entering verdicts and perfecting judgments, all imply that it was the purpose of the codifiers and of the legislature to have but one form of commencing suits, one simple and single remedy for legal and equitable causes of action. So far as relates to the form of the remedy, the language of the Code is too explicit to admit of any doubt upon this head; and it seemed to a majority of the court that this section of the Revised Statutes relating to the parties to the action for the recovery of real property, relates purely to the remedy, and is therefore repealed, as inconsistent with the provisions of the Code in regard to the parties to actions, to the form of actions, and to the whole scope of the Code. The action of ejectment is not retained. Actions in regard to real estate are provided for in the Code, and are to be commenced under it by summons and complaint, or by summons followed by a complaint, and are to be proceeded in and conducted in conformity therewith. Smith, J., who delivered the opinion of the court, observed: "The action of ejectment was anomalous before the Code, but I think the codifiers did not intend to have any such anomaly remain. They clearly intended to have one uniform system of practice and pleading and proceeding in all civil actions, and it would be in utter conflict, in my opinion, with

the whole principle, theory and policy of the Code to allow a variety of counts in the form presented in the complaint in this action. But such a mode of declaring is entirely unnecessary. The codifiers intended to allow great latitude in regard to parties. They say: 'We have intended to leave suitors very much at liberty to choose whom to make defendants and whom to join as plaintiff. No person can be affected by a judgment but a party, or one who claims under him. This rule will make the plaintiff bring in all the parties whom he wishes to affect. The judgment, as we have provided by section one hundred and sixty-one, can be given for or against any one or more of the plaintiffs or defendants. This will save the plaintiff from the hazard now encountered in bringing in too many parties, except that of paying costs.' * * A discreet exercise of the powers of the court to make amendments, to disregard variances, and decide upon and give effect to the rights of the parties as disclosed on the trial of causes, and without regarding too strictly the mere consideration of form, will best carry out the object of the Code and further the ends of justice. In this view of the duty of the court in respect to actions like the present, plaintiffs can suffer no wrong for the want of different counts in their complaints in the names of different plaintiffs." (St. John v. Pierce, 22 Barb. R. 369-371.)

*

It was intended by the Code to retain substantially the convenient mode of pleading in the action to recover the possession of lands, as prescribed by the Revised Statutes. (Warner v. Nelligar, 12 How. Pr. R. 402.)

Under the Revised Statutes, ejectment for premises not actually occupied might be brought against one claiming title at the commencement of the suit, though his claim had been manifested by words merely; and the same rule prevails under the Code. But an idle declaration of a party that he owns the premises, not amounting to a serious claim of title, will not justify the action against a party out of possession. Under all the changes of practice, and the purposes to which the action of ejectment is applied in the State of New York, it has been permitted to be brought only against some person actually in possession of the premises claimed, or who is exercising acts of ownership over the same, and claiming title thereto. (Bangor v. Empie, 5 Hill's R. 48. Redfield v. The Utica and Syracuse Railroad Company, 25 Barb. R. 54. Child v. Chappell, 9 N. Y. R. 246, 251.)

In ejectment, a plaintiff must, in his complaint, describe truly the premises claimed, but is not bound to set forth the nature of the estate, nor the quantity of the interest claimed by him; at least it was so held by the old supreme court of the state of New York, in a case under the Revised Statutes, and the practice in this respect is the same under the Code as under the Revised Statutes. In the action it is sufficient to aver in the complaint that the plaintiff has lawful title, for example, as the owner in fee simple, to the premises in question, describing them, that the defendant is in possession of said premises, and unlawfully withholds possession thereof from him. That is to say, it is not necessary under the Code, and it was not under the Revised Statutes, to state the requisite facts to show the plaintiff had real title; or any other facts to show that the plaintiff is entitled to the possession of the land. The allegation of title, being of something which the plaintiff would be bound to prove on the trial, in order to sustain his action, relates to the subject matter of the action, and the provision of the Revised Statutes as to that is still applicable. When a complaint alleged that W. J. S. died seised of real estate, leaving no child capable of inheriting, and that the land thereupon descended to F. S., as sole heir at law, etc., the court held that this must be regarded as equivalent to an allegation that F. S. was the heir and only heir at law of W. J. S., and in the same case the court decided that where a complaint in ejectment described the premises as about fifty acres in the southern part of a lot, which was fully and perfectly described, it was a sufficient description; but that if necessary the complaint could be amended by striking out the word "about," when all ground of objection in respect to the description would be removed. (St. John v. Northrup, 23 Barb. R. 25.)

Although the averments of prior possession in the plaintiff, and in effect of ejectment provided by the Revised Statutes, should be made in the declaration, it was not necessary to prove them, and the plaintiff might recover although he had never been in the occupation of the land. Because, under the express provisions of the Revised Statutes, a party having the present right of possession might recover, although he had never been in the actual occupancy, and of course had never been ejected. These averments of prior possession, and in effect of removal, were, therefore, merely formal and mere formalities, especially falsehoods, are

supposed to be abolished by the Code. (Ensign v. Sherman, 14 How. Pr. R. 439. Sanders v. Leavy, 16 ib. 308. Warner v. Nelligar, 12 ib. 402. Walter v. Lockwood, 23 Barb. R. 228. Garner v. The Manhattan Building Association, 6 Duer's R. 600. Harrison v. Stevens, 12 Wend. R. 170. But vide Lawrence v. Wright, 2 Duer's R. 673. Ensign v. Sherman, 13 How. Pr. R. 35.)

As before suggested, when premises are unoccupied, parties claiming title thereto, or some interest therein, may be named as defendants, in an action of ejectment; or what is equivalent in the action under the Code, to recover lands; and such parties are not permitted to complain that others should have been made defendants instead of themselves, if, when applied to on the subject, they omitted to set the plaintiff right. It seems that sometimes the plaintiff in ejectment has an election as to defendants. For example, when a party really claims to own the premises in dispute, and has contracted to sell the same to other parties, who are exercising acts of ownership over the premises, which premises are unoccupied, the plaintiff has an election to make the former or the latter parties defendants in the action to recover the same. (Edwards v. Farmers' Fire Insurance and Loan Company, 21 Wend. R. 467. Vide Cook v. Rider, 16 Pick. R. 186. Cooper v. Smith, 9 Serg. & Rawle's R. 26.)

Under the provisions of the statutes of the state, a widow's action of ejectment for dower must be brought against the actual occupant of the land of which she is dowerable, and not as in the former action of dower against the tenant of the freehold. And the action will lie against a tenant who has an estate or interest less than a freehold, and before dower has been assigned or admeasured. (Ellicott v. Mosier, 11 Barb. R. 574. Same Case, 7 N. Y. R. 281. But vide Townsend v. Townsend, 2 Sandf. R. 711.)

In an action to recover dower, before admeasurement, of real property aliened by the husband, the plaintiff cannot recover costs unless it appear that the dower was demanded before the commencement of the action, and was refused. (Code, § 307.)

A defendant in ejectment, or in the action for the recovery of real estate in New York, may, at any time before pleading, apply to the court, or to any judge thereof in vacation, to compel the attorney for the plaintiff to produce to such court or officer his authority for commencing the action in the name of the plaintiff therein. Such application must be accompanied by an affidavit of

the defendant, that he has not been served with proof in any way, of the authority of the attorney to use the names of the plaintiffs stated in the summons and complaint. Upon such application the court or officer must grant an order requiring the production of such authority, and must stay all proceedings in the action until the same be produced. (2 Stat. at Large, 314, §§ 17, 18, 19.)

It would seem that any officer having the authority to grant the same orders that the justices of the supreme court have at chambers, may make an order compelling the production of a warrant of attorney, in an action of ejectment. (Harris v. Safford, 10 Wend. R. 568.)

But

An agent of a person absent from the state, having power to see to his property and business in the state, and also to pay for and take a deed of, and take and hold possession of, and carry on and work a piece of land for his principal, has no power to give authority to an attorney to commence a suit to recover such land. an instrument, executed by one of two joint owners of the land, for and in the names of himself and his co-tenant (they being the plaintiffs in the suit), recognizing the authority of the attorney to commence the suit, and requesting him to continue it, the plaintiff executing the instrument, having been verbally directed and authorized by his absent co-plaintiff to do whatever was necessary in regard to the prosecution of the suit, has been held to be a sufficient recognition. (Howard v. Howard, 11 How. Pr. R. 80.)

The statute provides that any written request of the plaintiff or his agent, to commence such action, or any written recognition of the authority of the attorney to commence the same, duly proved by the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such authority. And if it is made to appear, that, previous to such application by any defend ant, he has been served with a copy of the affidavit of the plaintiff's attorney, showing his authority to bring such action, such application will be dismissed, and the defendant will be liable for the costs of resisting the application; the payment of which may be compelled by fieri facias against personal property, as in other cases, founded upon the order of the court. (2 Stat. at Large, 314, §§ 20, 21; Laws of 1847, ch. 390, §§ 2, 3.) The defendant may answer the plaintiff's complaint, by a general or specific denial of each material allegation therein contained, controverted by him, or of any knowledge or information thereof sufficient to form a belief.