Wickham v. Seely
New York Supreme Court
[650] The plaintiff sued in this court, and declared in trespass quare clausum fregit, for breaking and entering a certain unenclosed, unoccupied, and uncultivated lot of land of the plaintiff, covered with water, of which the- plaintiff had no actual possession, called Wickham's Pond, and for fishing therein. The defendant pleaded leave and license, on which issue was joined, and to that issue alone, with the damages, was the evidence addressed at the trial.
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[650] The plaintiff sued in this court, and declared in trespass quare clausum fregit, for breaking and entering a certain unenclosed, unoccupied, and uncultivated lot of land of the plaintiff, covered with water, of which the- plaintiff had no actual possession, called Wickham's Pond, and for fishing therein. The defendant pleaded leave and license, on which issue was joined, and to that issue alone, with the damages, was the evidence addressed at the trial. It appeared that the bcus in quo was unenclosed, See., as mentioned in the declaration. On the trial, the defendant, holding the…
1Opinion of the Court
By the Court,
Cowen, J.
The title was not in any wise brought in question at the trial. The plea of leave and license admitted it. To entitle the plaintiff to costs, he should have sued before a justice, or have gone to the common pleas, where he might, had the fact appeared, have obtained a certificate or asked the jury to find that the trespass was wilful and malicious. (2 R. S. 613, § 3, sub. 2. 10 Wendell, 565. 2 R. S. 614, 615, § 12, sub. 2.)
[651] [652] If the plaintiff’s claim for costs is to be maintained, it must be on the ground, that he has no remedy in a justice’s court. In a case of…
2Cases cited1 opinion
- Broughton v. WellingtonNew York Supreme Court · 1833