Duclos v. Kelly
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Frank Duclos, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 11th day of January, 1907, upon the decision of the court rendered after a trial at the Essex Trial Term, certain questions having been submitted to the jury, dismissing the plaintiff’s complaint. . The complaint alleges that the plaintiff is the owner and in sole possession of parts of lots 77 and 78, Peru…
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Appeal by the plaintiff, Frank Duclos, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 11th day of January, 1907, upon the decision of the court rendered after a trial at the Essex Trial Term, certain questions having been submitted to the jury, dismissing the plaintiff’s complaint. . The complaint alleges that the plaintiff is the owner and in sole possession of parts of lots 77 and 78, Peru Bay tract in Essex county, N. Y.; that .the defendant, without permission or right, has entered upon said land and cut…
1Opinion of the Court
Smith, P. J.:
The plaintiff might have lawfully joined in his complaint a cause of action for trespass and an equitable cause of action for injunction to prevent further trespass. Where the damage is substantial and judgment therefor is demanded in the complaint, it cannot be said that damage alleged is incidental only to the equity action. It is asserted by the trial judge, in his opinion, that the cause of. action for trespass was .Waived and not insisted upon in the proceedings upon the trial. The difficulty with this position lies in the fact that such a waiver does not appear in the…
2Cases cited3 opinions
- Root v. ChandlerNew York Supreme Court · 1833
- Haight v. BadgeleyNew York Supreme Court · 1853
- Van Buskirk v. IrvingNew York Supreme Court · 1827