Dudley v. Bolles
New York Supreme Court
Ebbob, from the Chenango common pleas. Bolles sued Dudley in a justice’s court, and declared against him in a special action on the case, “ for driving immoderately and unlawfully, a mule in a cutter, on a public highway in the town of Smithville, so as to run against a certain mare in the possession of the servant of the plaintiff, in such a manner as to cause her death, on the 7th day of March, 1838.” The defendant pleaded the general issue.
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Ebbob, from the Chenango common pleas. Bolles sued Dudley in a justice’s court, and declared against him in a special action on the case, “ for driving immoderately and unlawfully, a mule in a cutter, on a public highway in the town of Smithville, so as to run against a certain mare in the possession of the servant of the plaintiff, in such a manner as to cause her death, on the 7th day of March, 1838.” The defendant pleaded the general issue. The cause was tried by a jury, who found a verdict for the plaintiff, with $40 damages, on which judgment was rendered. The defendant appealed to the…
1Opinion of the Court
By the Court,
Cowen, J.
The defendant cannot take advantage of a defect in the declaration by a motion to nonsuit the plaintiff. The objection should be taken by demurrer, or in arrest of judgment, or by writ of error. The averment of immoderate driving may, perhaps, be considered as equivalent to one of negligent driving; and in this respect the declaration here sustainable on error after verdict; though the same thing can perhaps hardly be said of the total omission to shew property in the mare. The declaration was simply for an injury to a mare in possession of the plaintiff’s servant. This…
2Cases cited5 opinions
- Robb v. Hackley & WeltonNew York Supreme Court · 1840
- People v. VaneNew York Supreme Court · 1834
- M'Dowell v. SimpsonSupreme Court of Pennsylvania · 1834
- United States Bank v. StearnsNew York Supreme Court · 1836
- Collins v. EllisNew York Supreme Court · 1839
3Cited by6 opinions
- Cutter v. RathbunNew York Supreme Court · 1842
- Gorman v. WilliamsAppellate Terms of the Supreme Court of New York · 1899
- In re the Probate of the Last Will & Testament of HesdraNew York Court of Appeals · 1890
- Nichols v. MartinNew York Supreme Court · 1885
- Pierce v. KearneyNew York Supreme Court · 1843
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