Sanders v. Leavy , 16 How. Pr. 308 ( 1858 )

Ingraham, Justice.

I think the complaint in this case is sufficient. To recover real estate, what is it necessary for the plaintiff to prove ? Two things: first, that he is the owner of the property; secondly, that the defendant withholds from him the possession without right. Both facts are plainly averred in the complaint. The demurrer admits both to be true, and with such an admission made on the trial, could any court refuse to give judgment ?

If the defendant’s views are right, the plaintiff could be compelled to set out the evidence on which he relies to prove his complaint, and then he would be liable to a motion to strike such allegations from the complaint. If there was any doubt on this point, the decisions of the general term in the second district, in Ensign agt. Sherman, (14 How. 439,) of the sixth district in Walter agt. Lockwood, (23 Barb. 228,) are directly in point.

Judgment for the plaintiff on demurrer, with leave to defendant to answer on payment of costs.