Heath v. Barmour
New York Supreme Court
MOTION by the plaintiff, by way of appeal from an adjustment of costs in this action, by the clerk of Chautauqua county. The action was brought, originally, in a justice’s court.
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MOTION by the plaintiff, by way of appeal from an adjustment of costs in this action, by the clerk of Chautauqua county. The action was brought, originally, in a justice’s court. The plaintiff alleged, in his complaint, that the defendant wrongfully and unlawfully broke and entered the plaintiff’s close, in the town of Gerry, in the county of Chautauqua, on or about the months of May, June, July, August and September, in the year 1862; also, in the months of April, &c., 1863, and so as to 1864, 1865 and 1866; and the defendant, during each and all of the said months and years, being…
1Opinion of the CourtMarvin, J.
The second and third answers of the defendant justify all the acts of which the plaintiff complains, on the ground that the locus in quo was, at the time the acts were committed, a highway used by the public, and belonging to the town, or the plank road company.
The justice must have so understood these answers. He did not understand that there were any alleged trespasses not met by these answers, and which remained for trial under the issue found by the general denial. The defendant tendered the undertaking required by law, and demanded judgment for costs of suit. The justice was right in…
2Cases cited2 opinions
- Burhans v. TibbitsNew York Supreme Court · 1852
- Hall v. HodskinsNew York Supreme Court · 1865