Potter v. . Smith
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon a verdict. This action was for trespass upon lands. The complaint alleged title to, and possession of, the locus in quo in plaintiff.
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Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon a verdict. This action was for trespass upon lands. The complaint alleged title to, and possession of, the locus in quo in plaintiff. The answer alleged in substance, that defendant was the “ owner in fee of lands lying next northerly of the lands of plaintiff, which are mentioned and described in the complaint, and that as appurtenant thereto defendant owns an open right of way across the said lands of the plaintiff,” which right of way…
1Opinion of the CourtAndrews, J.
The complaint alleges that the plaintiff, when the alleged trespass was committed, was the owner and in possession of the premises upon which the alleged unlawful entry by the defendant was made.
The defendant in his answer justifies the entry on the ground that he had an open right of way over the premises, and entered to remove an obstruction unlawfully placed therein. The plea of justification assumes that the plaintiff has a cause of action, except for the matter specially pleaded. But, aside from this, the language in the answer setting up the justification, by fair construction, admits…
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