Legal Opinion

Utter v. Gifford

New York Supreme Court

Decided December 15, 1862PublishedCited by 1 opinion

The complaint alleges that at certain times therein mentioned, the defendant, by himself and agents, &c., broke and entered plaintiff’s close, in town of Durham, Greene county, and then and there cut down trees and timber of plaintiff, growing thereon, and exposing standing timber to the wind so that it was liable to be blown down and injured. The defendant’s answer, first, admitted expressly that the land and premises were the premises of plaintiff.

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The complaint alleges that at certain times therein mentioned, the defendant, by himself and agents, &c., broke and entered plaintiff’s close, in town of Durham, Greene county, and then and there cut down trees and timber of plaintiff, growing thereon, and exposing standing timber to the wind so that it was liable to be blown down and injured. The defendant’s answer, first, admitted expressly that the land and premises were the premises of plaintiff. Second, that the defendant entered upon said premises of plaintiff by the leave and license of plaintiff. The jury found a verdict for plaintiff…

1Opinion of the Court

By the court, Hogeboom, Justice.

In this case the order of the court was, that the plaintiff, though recovering less than $50, was entitled to costs. This could not have been on the ground that the title to lands came in question on the trial, for there was no certificate of the judge of that fact, and the judge’s certificate is the only legal and proper evidence, at least in the first instance. *298(Code, §304; Burhans agt. Tibbets, 7 How., 74; Niles agt. Lindsley, 8 How., 131.) The decision therefore must have been upon the ground, either that costs are given by law in all actions of trespass…

2Cases cited3 opinions

  1. Rathbone v. McConnellNew York Supreme Court · 1855
  2. Bennett v. ButterworthSupreme Court of the United States · 1850
  3. Widow & Heirs of De La Lande v. Treasurer of the StateSupreme Court of the United States · 1855

3Cited by1 opinion

  1. Bloomingdale v. SteubingNew York Court of Common Pleas · 1895

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