Van Buskirk v. Irving
New York Supreme Court
On error from the New York O. P. Van Bushirh brought trespass guare domum fregit, against Irving, in the court below. Plea, the general issue. On the trial, the trespass proved was, that the defendant came to the plaintiff’s house in the city of New York, and demanded pay for milk; but was told that nothing was due.
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On error from the New York O. P. Van Bushirh brought trespass guare domum fregit, against Irving, in the court below. Plea, the general issue. On the trial, the trespass proved was, that the defendant came to the plaintiff’s house in the city of New York, and demanded pay for milk; but was told that nothing was due. He came often, made a great noise in the plaintiff’s absence from home, and used bad language; so that the plaintiff’s wife left the house, and went to her daughter’s in another part of the city. The defendant offered to prove that the plaintiff owed Mm 13 shillings for milk. This…
1Opinion of the Court
Curia., per Savage, Ch. J.
It is well settled, that in trespass, the plea of the general issue questions the fact of the trespass, and also the title, whether freehold or possessory ; and, in general, any matters which, prima fade, show that the right of possession is not in the plaintiff, but in the defendant. Any matter of justification or excuse, however, must be pleaded. That the defendant went to demand a debt due him, amounts to a license in law, and must be pleaded, or notice should be given. (1 Chit. Pl. 495; Cro. Eliz. 876.)[1]
*36*Here the judge decided that evidence of the debt might be…
2Cases cited1 opinion
- Sterry v. SchuylerNew York Supreme Court · 1840
3Cited by4 opinions
- Cary v. Western Union Telephone Co.New York Supreme Court · 1888
- Goldman v. KennedyNew York Supreme Court · 1888
- Duclos v. KellyAppellate Division of the Supreme Court of the State of New York · 1907
- Dunckel v. FarleyNew York Supreme Court · 1845