Whalen v. Union Bag & Paper Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Robert E. Whalen, from bo much of an interlocutory judgment of the Supreme Court in favor 'of the defendant, entered in the office of the clerk of the county .of Sara-toga on the 6th day of October, 1908, upon the decision ’of the court, rendered after a trial at the Saratoga Special Term, as overrules the plaintiff’s demurrer to the fourth and fifth defenses in the amended answer.
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Appeal by the plaintiff, Robert E. Whalen, from bo much of an interlocutory judgment of the Supreme Court in favor 'of the defendant, entered in the office of the clerk of the county .of Sara-toga on the 6th day of October, 1908, upon the decision ’of the court, rendered after a trial at the Saratoga Special Term, as overrules the plaintiff’s demurrer to the fourth and fifth defenses in the amended answer. It is alleged in the complaint that plaintiff is the owner of á tract of land upon and along a private stream or watercourse; that on said stream, about two miles above plaintiff’s…
1Opinion of the Court
Cochrane, J.:
All that has been determined in reference to the second defense is that the facts therein alleged are standing alone insufficient. We *316are not, however, precluded from considering those facts in connection with the fourth and fifth defenses because in these latter defenses such facts are realleged and made a part thereof.
Whether or not we may take judicial cognizance of what was in the pleader’s mind in alleging in the fourth defense that the water of the stream has become changed from primary to secondary uses, it may reasonably be inferred from all the facts set forth in this…
2Cases cited2 opinions
- Strobel v. . Kerr Salt Co.New York Court of Appeals · 1900
- Straus v. American Publishers' Ass'nAppellate Division of the Supreme Court of the State of New York · 1905
3Cited by2 opinions
- Buell v. GreeneSouth Dakota Supreme Court · 1939
- Chisholm v. MullerAppellate Division of the Supreme Court of the State of New York · 1929