People ex rel. Fryer v. New-York Common Pleas
New York Supreme Court
Motion for mandamus. Fryer brought an action for trespass qmare clausum fregit in the N. Y. common pleas, against Bennet, who pleaded the general issue, and gave notice of justification.
Read the full summary
Motion for mandamus. Fryer brought an action for trespass qmare clausum fregit in the N. Y. common pleas, against Bennet, who pleaded the general issue, and gave notice of justification. By the notice the defendant disclaimed and disavowed all title or interest in the lands, but set up that he was in the employ of J. & C. Miller, who occupied premises adjoining the close in question, and that he entered on the plaintiff's close for the purpose of opening the drain of Miller’s cellar, which had been stopped up ; and he alleged that “ an implied permission, or permission absolute or from…
1Opinion of the Court
By the Court,
Bronson, J.
The present statute, although it differs in phraseology, was only intended to adopt the exposition which had been given to the former law. (2 R. S. 613, § 3, sub. 2. Revisers’ notes. Chandler v. Duane, 10 Wendell, 565.) Notice of justification with the general issue was equivalent to a special plea, for all the purposes contemplated by this statute. (6 Wendell, 539.) But in this case, if the notice was good for any purpose, it did not call in question the title, nor a right of way, nor any easement in the land. It amounted to nothing more than a license to enter for a…
2Cases cited1 opinion
- Radley v. BriceNew York Supreme Court · 1831