On cross appeals from the Supreme Court.
For the plaintiff, George G. Tennant.
For the defendant, Edward R. McGlynn.
The opinion of the court was delivered by
PARKER, J. This is an ejectment suit. The plaintiff demanded possession, and added a claim for mesne profits as permitted by statute, first enacted in 1855. Pamph. L. 1855, p. 309, § 76; Nix. Dig. 1855, pp. 645-6; Rev. 1877, p. 332; Comp. Stat. 1910, p. 2063; N.J.S.A. 2:51-46. See Supreme Court rules 186 to 189 inclusive.
The case was tried without jury, and plaintiff had judgment for possession, but the claim for mesne profits was overruled, and the refusal to award mesne profits is the basis of plaintiff's appeal.
As to defendant's appeal: the answer first filed sets up in the first paragraph that defendant "disclaims all right, title, interest or possession in or to the lands" in question,
and alleges that at no time did it claim any such right, &c. The second paragraph is substantially that plaintiff always had the right of possession, and that defendant never did wrongfully deprive plaintiff thereof, and hence that no right to mesne profits accrued to plaintiff. This answer the court struck out, with leave to file further answer, and defendant then answered that "it denies the truth of the matters contained in the complaint." This, it will be observed, is the precise form appended to the rules of this court (1938) as form 22-a and entitled therein: "Answer in ejectment by tenant in possession where he defends for the whole premises claimed," and corresponds to form 4 in Revision of 1877 at page 334 with similar title. On this issue the cause was tried, and judgment for possession entered, as has been said, with costs, but excluding mesne profits.
The grounds of defendant's appeal are in substance (1) striking out the answer containing a "disclaimer," (2) refusing to consider the alleged "disclaimer," (3) awarding costs to plaintiff and refusing them to defendant, (4) generally, in refusing to find for defendant.
It is convenient to deal first with defendant's appeal.
For the practice of striking out an answer in ejectment in a proper case, we have the authority of Milberg v. Keuthe, 98 N.J.L. 779.
As to the "disclaimer" set out in the answer, in that form it is not warranted by the statute or practice. The present statute relating to disclaimer, N.J.S.A. 2:51-21, is substantially a re-enactment of the Revision of 1877, page 328, section 22, which was not in the Act of 1855 and probably was inserted by the revisers in view of Stewart v. Camden and Amboy Railroad Co., 33 N.J.L. 115, decided in 1868. In that case a special application was made to the court for "liberty to deny at the trial, that (defendants) were in * * * possession * * * in such manner as to subject them to an action of ejectment * * *," section 22, supra, establishes the practice for disclaimer and calls for an "appearance" before ...