Legal Opinion

Wilcox v. Wood

New York Supreme Court

Decided October 15, 1832PublishedCited by 19 opinions

Error from the Albany common pleas. Wilcox sued Wood in an action of trespass quare domum fregit. The defendant pleaded liberum, tenementum, on which issue was taken. The premises are a dwelling house in the city of Albany, the first floor of which, with the exception of an entry or hall leading to a stair case communicating with the upper floors, is occupied as a store.

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Error from the Albany common pleas. Wilcox sued Wood in an action of trespass quare domum fregit. The defendant pleaded liberum, tenementum, on which issue was taken. The premises are a dwelling house in the city of Albany, the first floor of which, with the exception of an entry or hall leading to a stair case communicating with the upper floors, is occupied as a store. The house, with the exception of the store,* had been let by the landlord to a Mrs. Mahan, and he had agreed to continue the lease to thej^rst day of May, 1829. In November, 1828, the landlord accepted, the plaintiff as his…

1Opinion of the Court

*348 By the Court,

Savage, Ch. J.

The judgment in the court beiow js reversed, for the reason that the court nonsuited the plaintiff improperly. The plaintiff had proved his cause of action specified in his declaration. The defendant had not verified his plea of liberum tenementum, nor had he connected himself with the title in any way, or if he did, the bill of exceptions does not shew it; but if he had, it was not the province of the court, but of the jury, to determine that matter of fact. The court should have submitted the case to the jury. The defendant produced a lease, but from whom does…

2Cited by19 opinions

  1. Walls v. . BaileyNew York Court of Appeals · 1872
  2. Cornell v. MoultonNew York Supreme Court · 1846
  3. Harper v. PoundIndiana Supreme Court · 1858
  4. Kilgore v. BulkleySupreme Court of Connecticut · 1841
  5. Rastetter v. ReynoldsIndiana Supreme Court · 1903

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