Radley v. Brice
New York Supreme Court
This was an action of trespass quart clausum fregit, and for cutting and carrying away timber. The defendant pleaded the general issue, and gave notice of justification generally, to enter upon the premises, and to take timber, &c.
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This was an action of trespass quart clausum fregit, and for cutting and carrying away timber. The defendant pleaded the general issue, and gave notice of justification generally, to enter upon the premises, and to take timber, &c. On the trial of the cause, it was shewn that the defendant had entered upon premises possessed by the plaintiff, part of which were enclosed, and part unenclosed, and the damage of the plaintiff, in the taking of timber by the defendant, was proved to exceed in value $100. The defendant produced in evidence a lease from Stephen Van Rensselaer, the original…
1Opinion of the Court
By the Court,
Nelson, J.
A plaintiff is entitled to recover costs “ in all actions in which the title to lands or tenements, or a right of way, or a right by proscription or otherwise, to any easement in any lands, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause.” 2 R. S. 613, § 3. A notice of justification subjoined to the general issue in an action of trespass is equivalent to a special plea, and as effectually puts the title in is*540sue; the rights of the plaintiff in this case,…
2Cited by5 opinions
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