Brush v. Mullen

New York Supreme Court

Brush v. Mullen

12 Abb. Pr. 242

DecidedMarch 15, 1861

StatusPublished

This text of 12 Abb. Pr. 242 (Brush v. Mullen) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brush v. Mullen, 12 Abb. Pr. 242 (N.Y. Super. Ct. 1861).

Pincite

Opinion

Leonard, J.

—The order of arrest herein must be vacated. The complaint is on a claim of title by plaintiffs to land, and alleges that defendant ejected them, and detains possession.

The case of Merritt a. Carpenter (30 Barb., 61) is relied oh by the plaintiffs to sustain the arrest.

It appears to me to prove the contrary. It shows that the final clause of the first subdivision of section 179 of the Code, so far as it mentions taking, detaining, or converting property, refers to personal property only. That the mention of injuring property, refers both to real and personal property..

The complaint in that case contained a claim for damages for withholding the premises. The opinion says the claim for mesne profits, or damages for withholding the land, is a trespass, and trespass in such case is an injury to property, and therefore under sec. 179, subdivision 1, the defendant, is there subject to an arrest.

No such case is made by the complaint in this action.

There can be no recovery for an injury to real property. Nothing is said in the affidavit upon which the order of arrest was made of any injury to the premises. '

Free access — add to your briefcase to read the full text and ask questions with AI

Leonard, J.

—The order of arrest herein must be vacated. The complaint is on a claim of title by plaintiffs to land, and alleges that defendant ejected them, and detains possession.

The case of Merritt a. Carpenter (30 Barb., 61) is relied oh by the plaintiffs to sustain the arrest.

It appears to me to prove the contrary. It shows that the final clause of the first subdivision of section 179 of the Code, so far as it mentions taking, detaining, or converting property, refers to personal property only. That the mention of injuring property, refers both to real and personal property..

The complaint in that case contained a claim for damages for withholding the premises. The opinion says the claim for mesne profits, or damages for withholding the land, is a trespass, and trespass in such case is an injury to property, and therefore under sec. 179, subdivision 1, the defendant, is there subject to an arrest.

No such case is made by the complaint in this action.

There can be no recovery for an injury to real property. Nothing is said in the affidavit upon which the order of arrest was made of any injury to the premises. '

Cite This Page — Counsel Stack

Bluebook (online)

12 Abb. Pr. 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brush-v-mullen-nysupct-1861.

Opinion

Related

Cite This Page — Counsel Stack