Gilbert v. Pritchard

New York Supreme Court

Gilbert v. Pritchard

48 N.Y. Sup. Ct. 46, 2 N.Y. St. Rep. 663

DecidedJune 15, 1886

StatusPublished

This text of 48 N.Y. Sup. Ct. 46 (Gilbert v. Pritchard) 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

Gilbert v. Pritchard, 48 N.Y. Sup. Ct. 46, 2 N.Y. St. Rep. 663 (N.Y. Super. Ct. 1886).

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Opinion

Smith, P. J.:

The first count in the complaint alleges an assault and battery; the second alleges that defendants broke plaintiff’s close, on a day stated, and then and there trod down the grass and crops and assaulted and beat the plaintiff. The second count, as well as the first, alleges but one cause of action. It is what, under the old nomenclature, was known as trespass guare clausum fregit, the injury to the grass and crops and to the plaintiff’s person being stated, not as separate causes of action, but in aggravation of the trespass. Instances of this form of pleading were familiar under the old practice. ( Van Leuven v. Lyke, 1 Comst., 515 ; Howe v. [47]*47Willson, 1 Denio, 181; Dunckle v. Kocker, 11 Barb., 887; Clark v. Van Vrancken, 20 Barb., 278.) And as there is nothing in the Code prohibiting a party from alleging in one count every item of damage he may have suffered from a single trespass, that form of pleading is still good.

The order appealed from should be reversed and the motion denied, with ten dollars costs and disbursements of the appeal.

Barker and Bradley, JJ., concurred; Haight, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied.

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Smith, P. J.:

The first count in the complaint alleges an assault and battery; the second alleges that defendants broke plaintiff’s close, on a day stated, and then and there trod down the grass and crops and assaulted and beat the plaintiff. The second count, as well as the first, alleges but one cause of action. It is what, under the old nomenclature, was known as trespass guare clausum fregit, the injury to the grass and crops and to the plaintiff’s person being stated, not as separate causes of action, but in aggravation of the trespass. Instances of this form of pleading were familiar under the old practice. ( Van Leuven v. Lyke, 1 Comst., 515 ; Howe v. [47]*47Willson, 1 Denio, 181; Dunckle v. Kocker, 11 Barb., 887; Clark v. Van Vrancken, 20 Barb., 278.) And as there is nothing in the Code prohibiting a party from alleging in one count every item of damage he may have suffered from a single trespass, that form of pleading is still good.

The order appealed from should be reversed and the motion denied, with ten dollars costs and disbursements of the appeal.

Barker and Bradley, JJ., concurred; Haight, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied.

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48 N.Y. Sup. Ct. 46, 2 N.Y. St. Rep. 663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-pritchard-nysupct-1886.

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