Fowler v. Milliman

9 N.Y. Sup. Ct. 408

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

E. Darwin Smith, J.:

From the opinion of the county judge, it appears that the judgment of the justice was reversed upon the single ground that evidence of the value of the úse of the premises was received. This was held to be error, upon the ground that the plaintiff had been ousted of the premises, and that a jiarty ousted must regain possession before he can maintain an action for any damages occurring subsequent to such trespass or entry by the wrongdoer. The same ground is presented and argued here, in support of the judgment of the County Court. The error of the county judge was in considering grounds and objections, not taken on the trial or specified in the notice of appeal, and reversing the judgment of the justice on such grounds. We have repeatedly held, that the review of the judgment rendered by justices of the peace should be confined to the ground particularly taken and specified in the notice of appeal.

* It is not fair for parties to lie by in the justice’s court, and refrain from taking there their objections, or from stating the true grounds of such objections, and also in stating general and vague grounds of error in their notice of appeal, and then raise the real ground of error, for the first time, in the County Court, or in this court.

The judgment of the County Court should be reversed, and that of the justice affirmed.

Present — Smith, P. J., Talcott and Gilbert, JJ.

Judgment of County Court reversed.

Delong v. Brainard, 1 N. Y. Sup. Ct., 1; Nolan v. Page, id., addenda, 2.