Howell v. Mills
New York Supreme Court
This was an appeal by the defendants, Edwin Mills and William M. Hurtin, an infant, from a judgment in partition, entered by order of the court at Special Terra.
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This was an appeal by the defendants, Edwin Mills and William M. Hurtin, an infant, from a judgment in partition, entered by order of the court at Special Terra. The premises were situated in Orange county, and were devised by William Hurtin, who owned them in his lifetime, in his will, as follows: “And first I give and bequeath unto my son, Alfred D. Hurtin, the farm on which I now live during his natural life, and also the piece and parcel of land which I took from William D. Hurtin’s farm adjoining the widow Hill as above mentioned. At his death I give and bequeath to his two sons, George…
1Opinion of the Court
By the Court—
Gilbert, J.
The complaint contains no averment that the plaintiff was in possession of the premises sought to be partitioned. Neither of the defendants interposed a demurrer on this ground, nor was the objection taken at Special Term in any form. We think it cannot be presented here for the first time. This certainly is the general rule. (Pope v. Dinsmore, 29 Barb., 367; Carley v. Wilkins, 6 id., 558.) The statute evidently contemplates that the objection should be taken by the defendants by demurrer or answer (2 R S., 320, §§ 16 to 25; Code, §§ 144, 147,148, 448); and when it is…
2Cases cited4 opinions
- Pillow v. RobertsSupreme Court of the United States · 1852
- Blakeley v. . CalderNew York Court of Appeals · 1857
- Brownell v. BrownellNew York Supreme Court · 1838
- Pope v. DinsmoreNew York Supreme Court · 1859
3Cited by5 opinions
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- Wallerstein v. American Surety Co.City of New York Municipal Court · 1891
- Chinn v. KeithNew York Supreme Court · 1874
- Salls v. SallsNew York Supreme Court · 1891
- Sullivan v. SullivanNew York Supreme Court · 1875