Dutton v. Holden
New York Supreme Court
Error from the New-York common pleas. Dutton and Blanchard brought their action in the common pleas against Holden in trespass for entering a close and dwelling house of the plaintiffs ; for destroying' the fence enclosing the lot, and for carrying away and converting the same to his own use. The defendant pleaded liberum, tenementum.
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Error from the New-York common pleas. Dutton and Blanchard brought their action in the common pleas against Holden in trespass for entering a close and dwelling house of the plaintiffs ; for destroying' the fence enclosing the lot, and for carrying away and converting the same to his own use. The defendant pleaded liberum, tenementum. The plaintiffs replied that before the said time when, áre. the defendant demised the premises to them (the plaintiffs) for the term of five years, by virtue of which they entered and wei’e possessed at the time of the said several trespasses, &c. The defendant…
1Opinion of the Court
By the Court,
Marcy, J.
The first question presented by the pleadings is whether the rejoinder is a departure from the defence set up by the plea. I am disposed to think it is not. The replication admits the truth of the plea of title, but sets up a lease; the defendant rejoins by shewing that notwithstanding the lease, he had a right to enter. The lease contained a reservation of this right. The confusion, if ¡any exists as to the pleadings in this case, is attributable, I think, to a want of care in discriminating between a reservation of a right to enter and the acquisition of it as a…
2Cited by2 opinions
- Hesler v. ShaferNew York Supreme Court · 1894
- White v. ThurberNew York Supreme Court · 1890