Harrison & Dorrival vs. Stevens, 12 Wend. 170

By the Court, Savage, Cli. J. The judge, I think, was correct in deciding that the plaintiff might recover for an undivided part of the premises, although he claimed the whole in his declaration. The statute, 2 R. S. 304, § 9, declares that if the plaintiff claims an undivided share or interest in any premises, he shall state the same particularly in his declaration.

But if he claims the whole of certain premises, and it turns out on the trial that the defendant owns a part, shall the plaintiff be nonsuited and be driven to another action to obtain what he is entitled to, merely because his declaration claims more than his precise right ? There surely would be no justice in such a course, unless the statute positively requires such a declaration. In my opinion the statute is complied with by claiming the whole ; the verdict will show the exact quantity recovered, and the regulations respecting the verdict, 2 R.

S. 307, § 30, show that it need not be for the quantity described in the declaration. When there are several plaintiffs, and title be shown in one only, the verdict shall be in his favor, and for the defendant as against the other plaintiffs. If the suit be against several defendants, the verdict may be against one only. If the plaintiff recovers the whole premises claimed, the verdict shall be general; but if only a

part is recovered, the verdict shall specify such part; and if the verdict be for an undivided share, such share shall be specified in the verdict. The estate also established on the trial shall be specified in the verdict. All these different verdicts may be rendered upon a general declaration. The plaintiff is not bound to state his title precisely as it may be proved; he must describe the premises truly, but I do not understand that he is obliged to describe truly the nature of his estate, nor the quantity of his interest.

If he claims an undivided interest, he must so state it; but as I have before remarked, under a declaration claiming the whole, he is not prevented from recovering an undivided interest. He should not be so prevented, and this' case is an instance of the injustice of such a requirement.