Kelly v. New York & Manhattan Beach Railway Co.
New York Court of Appeals
Appeal from' order of the General Term of the Supreme Court in the second judicial department, affirming an order of Special Term, which vacated and set aside a taxation of costs in favor of defendant and the judgment entered thereon, and directed the clerk to tax plaintiff’s costs. (Mem. of decision below, 19 Hun, 363.) This was an action of trespass guare clausum fregit.
Read the full summary
Appeal from' order of the General Term of the Supreme Court in the second judicial department, affirming an order of Special Term, which vacated and set aside a taxation of costs in favor of defendant and the judgment entered thereon, and directed the clerk to tax plaintiff’s costs. (Mem. of decision below, 19 Hun, 363.) This was an action of trespass guare clausum fregit. Th complaint alleged title and possession in plaintiff; that defendant unlawfully entered upon the lands and deposited thereon large quantities of earth, sand and rubbish, for which plaintiff claimed damages. The answer,…
1Opinion of the CourtRapallo, J.
The complaint alleged title in the plaintiff, as well as possession, and both allegations were specifically put in euiss by the answer. It is contended, however, that inasmuch as title in the defendant was hot set up, but only a license from the plaintiff was alleged, and proof of possession in the plaintiff would have sufficed to maintain the action, the issue upon the question of title was immaterial. This position might be sound if the complaint claimed damages only for the entry and invasion of the plaintiff’s possession, but,such is not the case. It claims damages for injury to the…
2Cited by10 opinions
- Indiana Pipe Line Co. v. ChristensenIndiana Supreme Court · 1919
- Lynk v. . WeaverNew York Court of Appeals · 1891
- Lopiano v. Telephone Co.New York Supreme Court · 1931
- Bailey v. DaiglerNew York Supreme Court · 1889
- Boardway v. ScottNew York Supreme Court · 1884
5 more not listed; retrieve them via the Exa API.