Cowenhoven v. City of Brooklyn
New York Supreme Court
THE complaint in this action averred that the plaintiff was seised of a parcel of land in Brooklyn, and lawfully entitled to its possession; • that the defendant unlawfully, and without his consent, entered it and dug up and removed the soil upon it in 1852, and at various times, since then, to his damage in the sum- of $1000; that it was then worth $1200; that the defendant is unlawfully in possession of it, and unlawfully withholds the possession of it from the plaintiff.
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THE complaint in this action averred that the plaintiff was seised of a parcel of land in Brooklyn, and lawfully entitled to its possession; • that the defendant unlawfully, and without his consent, entered it and dug up and removed the soil upon it in 1852, and at various times, since then, to his damage in the sum- of $1000; that it was then worth $1200; that the defendant is unlawfully in possession of it, and unlawfully withholds the possession of it from the plaintiff. It also contained a count for use and occupation. The answer traversed the entry, and the use and occupation…
1Opinion of the Court
By the Court, Scrugham, J.
On the trial of this action, the defendant moved that the plaintiff should he ordered to elect whether the complaint should (to use the words of the case) “he one of ejectment or one in trespass.”
These words, as denoting forms of action, are ignored by the code, hut they are used and understood in the profession as indicating the right for an injury to which the remedy is sought by the action, the nature of such injury, and the particular character and extent of the relief which the law authorizes the court to grant, as such remedy. The motion was granted, and the…
2Cases cited3 opinions
- Cortelyou v. Van BrundtNew York Supreme Court · 1807
- Gidney v. EarlNew York Supreme Court · 1834
- Budd v. BinghamNew York Supreme Court · 1854
3Cited by11 opinions
- Strong v. . City of BrooklynNew York Court of Appeals · 1876
- Armstrong v. City of St. LouisSupreme Court of Missouri · 1879
- Blew v. RitzSupreme Court of Minnesota · 1901
- Martin v. SmithSupreme Court of Minnesota · 1942
- Rhemke v. ClintonUtah Supreme Court · 1880
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