Bennett v. Appleton
New York Supreme Court
Error from the Oswego O. P. Appleton sued Bennett, in an action of assault and battery. The defendant, besides putting in the general issue. pleaded that the plaintiff, at the time when, &c. was on a platform or steps leading to the door of the house, occnpied by the defendant, using offensive language, that he ordered the plaintiff to depart, and on his refusing to do so molliter manus imposuit, &c. To the second plea the plaintiff replied de injuria, &c.
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Error from the Oswego O. P. Appleton sued Bennett, in an action of assault and battery. The defendant, besides putting in the general issue. pleaded that the plaintiff, at the time when, &c. was on a platform or steps leading to the door of the house, occnpied by the defendant, using offensive language, that he ordered the plaintiff to depart, and on his refusing to do so molliter manus imposuit, &c. To the second plea the plaintiff replied de injuria, &c. On the trial of the cause, the plaintiff adduced testimony tending to show that the platform was part of a public highway: which evidence…
1Opinion of the Court
By the Court,
Nelson, C. J.
The counsel for the defendant below is mistaken in supposing that the plaintiff undertook to set up under the replication of de injuria a right of way, as an excuse for refusing to leave the premises of the defendant. If he had, the objection to the evidence would have been well taken, as the matter should have been specially replied. The ground relied upon by the plaintiff was, that he stood'upon the common highway, and not within the plaintiff’s dwelling or curtilage. This met the issue directly; and if maintained, disproved the plea. It was upon this view that the…
2Cited by8 opinions
- Crossman Co. v. RauchNew York Court of Appeals · 1934
- Puget Sound Dressed Beef & Packing Co. v. JeffsWashington Supreme Court · 1895
- Griffin v. SutherlandNew York Supreme Court · 1852
- Ford v. JohnsonNew York Supreme Court · 1861
- In re the Estate of KeoughNew York Surrogate's Court · 1904
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