People ex rel. Proctor v. Albany C. P.
New York Supreme Court
Motion for mandamus. McCormick sued the relator before a justice of the peace, and declared in trespass for breaking and entering his close situate in the town of Bethlehem. The declaration was general, and contained no description of the close. The defendant pleaded title ; McCormick thereupon brought an action in the common pleas, and 1 in his declaration described particularly the close in the_ trespass was alleged to have been committed.
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Motion for mandamus. McCormick sued the relator before a justice of the peace, and declared in trespass for breaking and entering his close situate in the town of Bethlehem. The declaration was general, and contained no description of the close. The defendant pleaded title ; McCormick thereupon brought an action in the common pleas, and 1 in his declaration described particularly the close in the_ trespass was alleged to have been committed. Proctor moved the C. P. to set aside the declaration on the ground of departure from the declaration before the justice. The motion was denied, and he…
1Opinion of the Court
By the Court,
Bronson, J.
When the defendant pleads title before the justice, and the plaintiff attempts to continue the proceeding, he must declare in the common pleas “ for the same cause of action whereon he relied before the justice.” 2 R. S. 237, § 64. There is no proof that the cause of action on which the plaintiff relied was not the same in both courts. The declaration in the C. P. differs in form from that before the justice, and this must often be the case or the pleading would be had on demurrer. It also differs from the original declaration in setting out the abuttals or a…
2Cited by9 opinions
- Clyde & Rose Plank Road Co. v. ParkerNew York Supreme Court · 1856
- Rundle v. GordonAppellate Division of the Supreme Court of the State of New York · 1898
- Wilgus v. WilkinsonAppellate Division of the Supreme Court of the State of New York · 1900
- Pugsley v. . KisselburghNew York Court of Appeals · 1853
- Rundle v. GordonAppellate Division of the Supreme Court of the State of New York · 1898
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