Legal Opinion

Skelding v. Whitney

New York Supreme Court

Decided August 15, 1829PublishedCited by 5 opinions

This was an action on the case, tried at New-York circuit, jn April, 1827, before the Hon. Ogden Edwards, one of the . . . , Circuit judges. The ground of complaint was, that the workmen of the ofdefendant> ™ digging to lay the foundations of a store house about to be erected by him, undermined the walls of a store house belonging to the plaintiff, situate on the adjoining lot, whereby the store house was injured and lessened in value.

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This was an action on the case, tried at New-York circuit, jn April, 1827, before the Hon. Ogden Edwards, one of the . . . , Circuit judges. The ground of complaint was, that the workmen of the ofdefendant> ™ digging to lay the foundations of a store house about to be erected by him, undermined the walls of a store house belonging to the plaintiff, situate on the adjoining lot, whereby the store house was injured and lessened in value. The defence set up was, that the damages claimed in this action had been urgéd as a set off by the present plaintiff, in a former action brought by the present…

1Opinion of the Court

By the Court,

Marcy, J.

As a defence to the present action, the defendant offered to* prove that the damages now claimed were taken into consideration, and allowed without objection from the plaintiff, by the sheriff’s jury, as a set off *157to the demand claimed in the former suit between the same parties ; but the judge refused to receive the evidence. The present application for a new trial rests mainly on the alleged error of this decision of the judge.

In the former snit, there was no issue; the plaintiff’s damages were assessed by a jury, and adjudged by them to be merely nominal. Was the…

2Cases cited1 opinion

  1. King v. FullerNew York Supreme Court · 1805

3Cited by5 opinions

  1. Nellis v. ClarkNew York Supreme Court · 1838
  2. Wilder v. CaseNew York Supreme Court · 1837
  3. Thompson v. WinelandSupreme Court of Missouri · 1847
  4. Whitaker v. BramsonU.S. Circuit Court for the District of Southern New York · 1855
  5. Ansley v. PearsonSupreme Court of Alabama · 1845

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