the premises are in the possession of defendant, and a demand thereof, and that defendant unlawfully withholds the same, an answer merely denying that the defendant was in possession, the demand thereof and the unlawful holding does not put in issue plaintiff's title. To raise that issue upon the plaintiff's allegations, while a stranger was in possession claiming title, the answer should have set up title in defendant, or out of the plaintiff. Ford v. Sampson, 17 How. 447; S. C. 8 Abb. 332; 30 Barb. 183. In an action by the people to recover land, an answer denying the plaintiff's title, but admitting defendant's possession of the premises, and his adverse holding of the same, alleging that no right or title had accrued to the plaintiff within forty years, and that neither the plaintiffs nor those under whom they claim had received the rents and profits thereof within forty years, was held insufficient, on demurrer, because it did not set up an adverse possession of forty years in the defendant. People v. Van Rensselaer, 8 Barb. 199; S. C. 9 N. Y. (5 Seld.), 291; People v. Livingston, 8 Barb. 253; Peo, le v. Arnold, 4 N. Y. (4 Comst.), 508.

o. Supplemental answer.-The provisions of the Revised Statutes (2 R. S. p. 908, §31) relative to the expiration of plaint

iff's title after commencement of action and before trial, are still in force. In such case, no supplemental answer is necessary, but the court may render judgment for the plaintiff for damages arising from the withholding possession, and against him for the recovery of the possession. Lang v. Wilbraham, 2 Duer, 171. See Olendorf v. Cook, 1 Lans. 37.

p. Defenses.-A defense of adverse possession, to be sufficient, must be an actual and hostile possession, not a mere trespass. An exclusive claim of title is essential. Miller v. Platt, 5 Duer, 272. See Kent v. Harcourt, 33 Barb. 491; Champlain and St. Lawrence Railroad Co. v. Valentine, 19 id. 484; Fosgate v. Herkimer Manufacturing and Hydraulic Co. 9 id. 287; S. C. 12 id. 352; 12 N. Y. (2 Kern.), 580; McGregor v. Comstock, 16 Barb. 427; S. C. 17 N. Y. (3 Smith), 162. It cannot prevail beyond the limits of the actual possession. Corning v. Troy Iron and Nail Factory, 22 How. 212; S. Č. 34 Barb. 529. It seems that an equitable defense may be interposed in an action of ejectment. Miller v. Platt, 5 Duer, 272; Crary v. Goodman, 12 N. Y. (2 Kern.), 266. See Chase v. Peck, 21 N. Y. (7 Smith), 581; Traphagen v. Traphagen, 40 Barb. 537; Thurman v. Anderson, 30 id. 621; McCray v McCray, id. 633; Requa v. Holmes, 19 How. 430; S. C. 16 N. Y. (2 Smith), 193; 26 N. Y. (12 Smith), 338; 24 How. 610 (n.) But such a defense to be available must be set up in the answer. Dewey v. Hoag, 15 Barb. 365. See Blair v. Claxton, 18 N. Y. (4 Smith), 529.

q. New trial.-The provisions of the Revised Statutes (2 R. S. p. 309, § 37), that the court in which a judgment or verdict in eject

ment shall be rendered at any time within three years thereafter, upon the application of the party against whom the same was rendered, his heirs or assigns, and upon payment of all costs and damages recovered thereby, shall vacate such judgment and grant a new trial, remains in force under the Code. Rogers v. Wing, 5 How. 50; Langv. Ropke, 1 Duer, 701; Cooke v. Passage, 4 How. 360; S. C. 3 Code R. 88. An order granting a new trial pursuant to this statute is not appealable to the court of appeals. Evans v. Millard, 16 N. Y. (2 Smith), 619. The statute applies only where there has been a trial by jury and verdict rendered. Chautauqua Co. Bank v. White, 23 N. Y. (9 Smith), 349. And is confined to actions of the same character as the former action of ejectment. Shumway v. Shumway, 1 Lans. 474; S. C. 41 N Y. (2 Hand), 143. But it does not confer power to grant a new trial in an action to set aside a deed for fraud. id. The three years are to be computed from the first judgment in the action. Chautauqua County Bank v. White, supra. The statute further provides for a second new trial in the discretion of the court, but each party cannot have two new trials. Bellinger v. Martindale, 8 How. 113. The court may grant a third trial. id. But will not do so where the applicant therefor has, on two previous trials, lost his case by overlooking a point of law, or by conceding a fact, or by omitting to seek a remedy, or to appeal from an erroneous ruling on an unimportant question of evidence, unless shown to have been thrown off his guard. Wright v. Milbank, 9 Bosw. 672.

r. Judgment.-By the Revised Statutes, where a new trial is not granted, a judgment in an action of ejectment concludes the parties to the action and all parties claiming under them by a title accruing after the commencement of the suit. Ainslie v. Mayor, etc. of New York, 1 Barb. 169. It has the same force and efficacy as any other judgment. See Beebe v. Elliott, 4 id. 457; Briggs v. Wells, 12 d. 567; Dunckle v. Wiles, 6 id. 515; Wilson v. Davol, 5 Bosw. 619; Laws of 1862, ch 485.

8. Verdict and recovery.-The provisions of the Revised Statutes as to the form of the verdict in ejectment are modified by section 261 of the Code. If the plaintiffs, collectively, are entitled to the whole of the property claimed, then a general verdict for the recovery of the whole property would be sufficient; but if only a moiety belonged to them collectively, a general verdict for such moiety would be proper. Wood v. Staniels, 3 Code R. 152. When plaintiff proves title to a less quantity of land than is claimed in his complaint, he is entitled to recover according to proof, and to amend the complaint accordingly. Kellogg v. Kellogg, 6 Barb. 116. Where, in an action against four defendants, the complainant tated that one of them unjustly claimed title to the premises, and that the others were in possession under him, and

rent, as the latter is but a substitute for a re entry, which is always final. Especially is it not applicable to such an action where the judgment is rendered upon demurrer and there is not leave to answer over. Christie v. Bloomingdale, 18 How. 12.

If, on the trial, plaintiff proves title to any part of the premises described in the complaint, he is entitled to a verdict for that part as a matter of right Vrooman v. Weed, 2 Barb. 330; Van Rensselaer v. Jones, 2 id. 643; Truax v. Thorn, 2 id. 156; Kellogg v. Kellogg, 6 id. 116. And if such part be described in the verdict, the complaint need not be amended. Vroom in v. Weed, supra. And where the complaint alleged that defendant claimed possession by right of his wife, and the proof was that he claimed by his own right, it was held an immaterial variance. Rose v. Bell, 38 Barb. 25. So, where the evidence as to the location of the premises differs from the description in the complaint, it is a variance, and not a failure of proof. Russell v. Conn, 20 N. Y. (6 Smith), 81.

t. Execution. The court will not order the sheriff to execute a writ of habere facias possessionem in a particular manner. Bowie v. Brahe, 4 Duer, 676; S. C. 2 Abb. 161. As to a stay of execution, see People v. Lee, 7 How. 49. In an action for the recovery of real property, and for damages for wrongfully withholding the same, if the plaintiff fails, he is liable, on the return of an execution unsatisfied, to an execution against his person for the costs of the action. Merritt v. Carpenter, 30 Barb. 61; S. C. 33 How. 428; 2 Keyes, 462; 31 How. 638 (n.); 29 How. 575 (n.)

u. Writ of assistance.-A writ of assistance may be issued ex parte, without service of notice of application for the order. New York Life Insurance and Trust Co. v. Cutler, 9 How. 407; New York Life Insurance and Trust Co. v. Rand, 8 id. 35, 352.

v. Ejectment for non-payment of rent may be maintained by the assignee of a lease. Main v. Green, 32 Barb. 448. Or by an assignee of the rent. Van Rensselaer v. Slingerland, 26 N. Y. (12 Smith), 580. Or by the personal representatives of the assignee of a life lease. Mosher v. Yost, 33 Barb. 277. See, also, Van Rensselaer v. Smith, 27 id. 104; Van Rensselaer v. Jones, 2 id. 643; Mayor, etc. of New York v. Campbell, 18 id. 156. In an action to recover possession of domised premises for non-payment of rent, it is not necessary to allege a demand of the rent. Mayor, etc. of New York v. Campbell, supra The provision of the statute (3 R. S. p. 596, § 30,

w. Complaint. In an action for possession of premises for non-payment of rent, where the complaint alleged that the plaintiffs on, etc., were the owners in fee, and possessed of all that certain water lot, vacant ground, and soil under water, called, etc. (describing the same), and that being so seized and possessed thereof, the plaintiffs did, on that day, sell and convey to R. M., and to his heirs and assigns forever, the said premises, with the appurtenances, subject to the payment therefor by said R. M., his heirs and assigns, on the first day of May then next, and yearly, and every year, on the first day of May, forever, of the rent of $- with a clause of re-entry, in case of non-payment of rent, and then averred that the defendant Dingee was in the possession of said premises, and that D. P. C. and J. G. S. claimed to have some title or interest in the premises by purchase of the said R. M.'s title, and that R. M. had not, nor had the defendants, or either of them, paid the aforesaid rent, at the time or times aforesaid, but that the same was wholly due and unpaid since, etc., wherefore the plaintiffs claim judgment, etc.; to which defendant demurred that it did not contain facts sufficient to constitute a cause of action, in that: (1) it did not allege a demand for rent; (2) no notice of an intention to re-enter; but the general term held it sufficient. Mayor, etc. of New York v. Campbell, 18 Barb. 156.

x. Ejectment for dower will lie against a tenant who has an estate or interest less than a freehold, and before dower has been admeasured. Ellicott v. Mosier, 11 Barb. 574; S. C. 7 N. Y. (3 Seld.), 201. It must be against the actual occupant of the land. Ellicott v. Mosier, 7 N. Y. (3 Seld.), 201. It is not necessary that the dower be demanded before bringing the action. id. She can maintain her action against the occupant of a single floor of a house, who has hired such floor of the owner for a single year. Ib.

y Defense.-In order 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, 11 Barb. 574; 7 N. Y. (3 Seld.), 201. And after admeasurement, the defendant may controvert her claim to any dower, the title of her husband, his seisin and her marriage. Parks v. Hardey, 4 Bradf. 15. See Sparrow v. Kingman, 1 N. Y. (1 Comst.), 242; S. C. 1 How. App. Cas. 692; 12 Barb. 201, sub nom. Kingman v. Sparrow; Finn v. Sleight, 8 Barb. 401; Poor v. Horton, 15 id. 484. There cannot be a set-off for damages for money due,

nor for rents received. Bogardus v. Parker, 7 How. 303

z. Counterclaim in actions for dower.-Elliott v. Gibbons, 30 Barb. 498; S. C. 31 N. Y. (4 Tiff.), 67; 28 How. 581 (n.); Bogardus v. Parker, 7 id. 303.

aa. Sale of real estate to pay dower. See Laws of 1870, ch. 717.

bb. Limitation in action for dower. Brewster v. Brewster, 32 Barb. 428.

cc. Admeasurement of dower.-As to proceedings before surrogate, see Board v. Board, 4 Abb. 295; Parks v. Hardey, 4 Bradf. 15 And as to notice to owner before

amendment. Stewart v. Smith, 39 Barb. 167; 'S. C. 14 Abb. 75; 1 Keyes, 59. As to decree of surrogate, see Wood v. Seely, 32 N. Y. (5 Tiff.), 105.

dd. Complaint for.-Admeasurement of dower, under the Code, is a substitute for the former petition for admeasurement, or the former bill in equity, and thus it is no objec. tion that the defendant is not in the actual possession of the lands, or that six months has not elapsed since the death of the husband. Townsend v. Townsend, 2 Sandf. 711; Stewart v. Smith, 39 Barb. 167; S. C. 1 Keyes, 59. As to the proper parties in such action, see Van Name v. Van Name, 23 How. 247; Wood v. Seely, 32 N. Y. (5 Tiff.),

105.

ee.

Ejectment by purchaser on sale under a surrogate's decree.-See Sibley v. Waffle, 16 N. Y. (2 Smith), 180.

f. Ejectment by purchaser on sale under an execution.-Against the defendant it is sufficient for 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 suit, and that plaintiff acquired the title of defendant under the sheriff's sale. Kellogg v. Kellogg, 6 Barb. 116; Dickinson v. Smith, 25 id. 102; Bigelow v. Finch, 11 id. 498; Smith v. Colvin, 17 id. 157. The judgment and filing of the judgment roll must be proved. Townshend v. Wesson, 4 Duer, 342. See Bigelow v. Finch, 11 Barb. 498; Dickinson v. Smith, supra.

gg. Mesne profits.-Where the plaintiff, in an action of ejectment is put in possession of the premises, and they are afterwards restored to the defendant by a writ of restitution, the proper action by the defendant for the rents and profits during the plaintiff's possession, is one in the nature of an action for use and occupation. Sheldon v. Van Slyke, 16 Barb. 26. See Holmes v. Davis, 21 id. 265; Mattice v. Lord, 30 id. 382. Where an action of ejectment is against a tenant, and he gives notice thereof to his landlord, the latter, in the absence of any proof to the contrary, will be deemed to have assumed the defense of the action, and is bound by the judgment, so that an action for mesne profits may be maintained against him, without any other recovery in ejectment. Van Alstyne v. McCarty, 51 Barb. 326.

Since the Code, the remedy for mesne profits after recovery in ejectinent, is by action, not by suggestion. Holmes v. Davis, 19 N. Y. (5 Smith), 488; S. C. 21 Barb. 265. Although the Code changes the form of the remedy, the principles of the provisions of the Revised Statutes relative to the recovery of mesne profits, remain in force, and are applicable to actions therefor after judgment in ejectment, though in form like the old action of trespass. id. On a suggestion for mesne profits, the plaintiff can only recover for six years next before filing the suggestion, not for the six years next succeeding the commencement of the ejectment suit. Budd v. Walker, 9 Barb. 493. As to the proof necessary for the recovery of mesne profBarb. 168. its, see Ainslie v. Mayor, etc. of New York, 1

hh. Receiver.--In an action to recover the possession of real property, with damages, it is not proper to appoint a receiver of the rents 12 Abb. 427; S. C. 22 How. 155; 35 Barb. 593; and profits thereof. Thompson v. Sherrard, People v. Mayor, etc. of New York, 10 Abb. 111. 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. But where the defendant (alleged to be holding the property under a defective title) was collecting the rents, etc., and was irresponsible, a receiver was appointed. Rogers v. Marshall, 6 Abb. N. S. 457; S. C. 38 How. 43. And the Superior Court, New York, made an order for a receiver in a similar action. Ireland v. Nichols, 37 How. 222; S. C. 7 Rob. 476; 1 Sweeny, 208.

ii. Injunction.-To restrain an action of ejectment, see Sieman v. Austin, 33 Barb. 9. As to the power of the court to compel a discontinuance or stay of proceedings in one suit pending another for the same cause, see Bishop v. Bishop, 7 Rob. 195, 276; Liftchild v. Smith, id. 306.

jj. Waste.-Pending an action of eject ment, how restrained. See People ex rel. Owen v. Davison, 4 Barb. 109; and Rogers v. Marshall, 6 Abb. N. S. 457; S. C. 38 How. 43.

kk. Death of defendant -The death of a sole defendant before verdict, abates the action, and it cannot be continued against his heirs. Mosely v. Mosely, 11 Abb. 105; Kissam v. Hamilton, 20 How. 369. But see ante, note Abatement."

ll. Death of plaintiff. Where the plaintiff dies and his heirs apply for leave to continue the suit, the widow need not join in the petition, nor be made a party. Ash v. Cook, 3 Abb. 389. Where one of two plaintiffs dies after judgment, execution may issue without scire facias, but it must be in the joint names of both defendants. Howell v. Eldridge, 21 Wend. 678.

mm. Change of occupancy pending action.-Where, during the pendency of the action, all the right, title and interest of the defendant in the premises, by operation of law, or by death of defendant, has been trans