When actions had names, this would have been known as an action of ejectment. The" cause was tried before a referee, who nonsuited the plaintiff, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint states that the plaintiff has lawful title as the owner in fee simple to the following described real estate in the village of Watkins, county of Schuyler, and state of Hew York, and then gives the boundaries and description. The complaint then states that the defendant is in possession of the said real estate, and unlawfully withholds the possession of the same from the said plaintiff. Wherefore the said plaintiff demands that the said defendant may be adjudged to surrender the possession of said real estate to the said plaintiff, and pay the said plaintiff damages for the unlawful withholding of the same to the sum of $500, &c. This is a good complaint, either under the code or the revised statutes. It is a good complaint under the strictest rule of the code. It contains a plain and concise statement of the. facts constituting the plaintiff’s cause of action. The facts constituting the plaintiff’s cause of action in this case are, that he has lawful title as owner in fee simple to these premises, and that the defendant is in the possession and unlawfully withholds the possession thereof from him. I can see no sense in requiring the plaintiff, after he had stated in his complaint that he was the owner in fee simple of these premises, and had lawful title -thereto, and that the defendant was in possession and unlawfully withheld such possession, to go on and state that the plaintiff was entitled to the possession. The allegation that the plaintiff is the owner in fee simple and that the defendant is in possession and unlawfully withholds the possession thereof from the plaintiff, necessarily presents this very issue. The defendant could not unlawfully withhold the possession from the plaintiff, unless the plaintiff was entitled to the *234possession. It has been thought by the profession quite generally, and by the referee in the case at bar, I have no doubt, that the case of Lawrence v. Wright, (2 Duer, 673,) conflicted with the views wnich I have taken of the complaint in the case at bar. The complaint in the case of Lawrence v. Wright averred that the premises were conveyed by Pierce to the plaintiff by a warranty deed, and that by virtue of that conveyance the plaintiff was seised of the premises, and had a lawful title thereto, &c.; and upon demurrer the court held the complaint bad. If I deemed it indispensable to a decision of the case at bar to complain of the case of Lawrence v. Wright, I should feel myself bound to condemn that case, and vote for its reversal. And if the doctrine which seems to be thrown out by the judge in that case is sought to be impressed upon us here, I am not prepared to submit to it. The idea that in an action of ejectment under the code, the plaintiff must go on and state the facts which prove or establish that he is the owner in fee simple and has the legal title, is to my mind simply an absurdity. This would require him to state the evidence, in detail, by which, when he came to the trial, his case was to be proved. There is no rule better settled, under our present system of pleading, than that the party is not permitted in his pleading to state the evidence which goes to establish the facts of his case, but must be content" with a plain and concise statement of the facts. This is too well settled to require a reference to the cases.
The defendant’s answer in this case consists simply of a denial of each and every allegation in said complaint contained. How what is the issue? The plaintiff alleges that he has lawful title, as owner in fee simple, to these premises. This is denied by the answer, and a perfect issue is made upon the plaintiff’s title. The plaintiff alleges that the defendant is in the possession of the premises, and unlawfully withholds the possession thereof from him. This the defendant denies, and a perfect issue is formed, both as to the fact whether the defendant is in possession, and whether he unlawfully withholds that possession from the plaintiff. The judgment must be reversed and a new trial granted, costs to abide the event.
*235[Chenango General Term, October, 21, 1856. Balcom, J.This action was brought to recover the possession of a lot of land situate in the village of Watkins, in the county of Schuyler. The action was tried before a referee, who dismissed the action on the ground that the complaint does not state facts sufficient to constitute a cause of action. Judgment has been entered in favor of the defendant for costs. I am of the opinion that the complaint is sufficient to entitle the plaintiff to recover. The form of the complaint need not be like declarations in ejectment, in suits under the revised statutes. (Code, §§ 69, 140. 2 Kernan, 165, 266.) The complaint in actions to recover the possession of real property must state facts instead of fictions, and its sufficiency must be tested by the code and not by the revised statutes. (Code, § 140.) The only provisions of the revised statutes made applicable to such actions, are those that relate “ to the subject matter”of the actions, (Code, § 455,) and not those that relate to the form of the actions. I think Justice Harris erred in supposing the mode of pleading in such actions prescribed by the revised statutes is still in force, (12 How. Pr. R. 402,) and for the reasons before stated the decision in 2 Duer, 673, cannot be followed. I am therefore, in favor of reversing the judgment in this action and ordering a new trial; costs to abide the event.
Gthat and Shankland, Justices, concurred in holding the - complaint sufficient.
Judgment reversed.
Shanlcland, Gray, Mason and Balcom, Justices.]