Ellsworth v. Putnam
New York Supreme Court
Demurrer to complaint. The plaintiff alleged in his complaint that on the 30th of June, 1846, he was seised of a farm known as letter IC. in lot lío. 2 of lot lío. 6 in the 24th allotment of the ELayaderosseras patent, containing 100 acres, commonly called the old steam lot.
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Demurrer to complaint. The plaintiff alleged in his complaint that on the 30th of June, 1846, he was seised of a farm known as letter IC. in lot lío. 2 of lot lío. 6 in the 24th allotment of the ELayaderosseras patent, containing 100 acres, commonly called the old steam lot. That in 1834 the farm was uncultivated, and in that year was reduced to cultivation, and in 1835 a dwelling house and barn erected thereon, by the persons then seised, adjacent to a durable stream of pure water flowing across the lot from west to east, known as dry brook. That such farm and such dwelling house and barn…
1Opinion of the CourtC. L. Allen, J.
The code, § 453, abolishes the writ of nuisance, but § 454 enacts that “ injuries heretofore remediable by writ of nuisance are subjects of action as other injuries, and in such action there may be judgment for damages, or for the removal of the nuisance, or both.” It is under this section of the code that the action is brought. The action therefore is a substitute for the statute remedy by writ of nuisance, and the plaintiff must aver all that was before requisite to sustain an action of that nature, It is not in the nature of an action on the case solely for damages, to sustain which…
2Cases cited4 opinions
- Blunt v. AikinNew York Supreme Court · 1836
- Brown v. WoodworthNew York Supreme Court · 1849
- Kintz v. McNealCourt for the Trial of Impeachments and Correction of Errors · 1845
- Clark v. StorrsNew York Supreme Court · 1848
3Cited by5 opinions
- Hess v. Buffalo & Niagara Falls Rail RoadNew York Supreme Court · 1859
- Miller v. Edison Electric Illuminating Co.Appellate Division of the Supreme Court of the State of New York · 1903
- Fisher v. RankinNew York Supreme Court · 1889
- People v. System Properties, Inc.Appellate Division of the Supreme Court of the State of New York · 1944
- Mulligan v. EliasNew York City Court · 1872