Opinion
Argued December 21, 1877
Decided January 15, 1878
Amasa J. Parker, for appellant. Edward M. Shepard, for respondents.
On the trial of this action, after plaintiff had opened his case, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action. He did not ask for leave to amend his complaint, but he excepted to the decision and appealed to the General Term, and then to this court, insisting all the time that his complaint was sufficient. Under such circumstances the complaint must be treated here as if it had been demurred to, and the sole question to be considered here is, whether it sufficiently states a cause of action?
It alleges that plaintiff "was, on the 19th day of November, 1856, entitled to the possession of, and the rents, issues and profits thereof, and has been since and still is entitled to the same," of seventy-five lots of land in the city of Brooklyn, describing them; that on or about the 26th day of January, 1870, an action was begun in the Supreme Court between the defendants Jackson as plaintiffs and the other defendants, excepting Cameron, as defendants, and that the parties to that action claimed as between each other some interest in these premises or the rents or profits thereof; that afterwards in that action defendant Cameron was appointed receiver of the rents, issues and profits of the said premises; that subsequently rents and profits amounting to a large sum arising from the said premises came into his hands, and that plaintiff had demanded from him the rents and profits so received by him, and had been refused; and then the plaintiff demanded relief, that the defendant Cameron account for all moneys received by him in the action in which he was appointed receiver; that he be restrained from "paying over to any person or persons, or making any disposition of the said moneys," so received, or afterwards to be received by him; "that he be required to pay the said moneys into court," or to the plaintiff, or to a receiver to be appointed in the action; that such order be made as is just; that a judgment and decree be made adjudging and requiring the said moneys to be paid to the plaintiff. No relief or judgment was demanded against any of the defendants but the receiver Cameron.
The complaint does not allege any facts showing that the plaintiff was entitled to the rents and profits. It does not allege that he owned or ever possessed the premises, or that he owned the rents. The allegation that he was entitled to the possession of the land and to the rents and profits, is a mere allegation of a conclusion of law. The facts should have been alleged from which such a conclusion of law could have been drawn. ( Pattison v. Adams, 7 Hill, 126; Scofield v. Whitelegge, 49 N.Y., 259.)
There is a further defect. The complaint does not show any right in the plaintiff to intervene in the litigation between the defendants. There is no allegation that any of the parties to that action claimed anything therein in hostility to him, or showing that he could in any way be damaged by that litigation, or bound by anything done or adjudicated therein. What right had he then to come into court and seek to take or control the moneys which they, in a litigation between themselves, had placed in the hands of a receiver to be disposed of in that action?
There is, therefore, abundant reason for holding that the complaint did not state facts sufficient to constitute a cause of action.
We cannot interfere with the extra allowance of costs. That was within the discretion of the court below, and seems to have been computed upon a proper basis.
The judgment must be affirmed.
All concur.
Judgment affirmed.