Hanna v. Rust

21 Wend. 149

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Bronson, J.

The issue tendered by the second replication is too narrow. The plaintiff attempts to excuse his continuance in the house after a request to depart, without giving any reason for the noise and disturbance which he continued to make in the house after the request. And again: the point of the issue, as the plaintiff presents it, is, that he did not wholly refuse to depart. That may be true, and yet there may have been such a refusal as would authorize the host or his servant to remove him.

Another objection to the replication is, that it sets up new matter, and then concludes to the country. If the allegations that the plaintiff was a guest in the house, that he demanded his trunk, and called for and paid his bill, are of any legal importance, the replication should have concluded with a verification, so as to give the defendant an opportunity to answer the new matter.

The general replication de injuria would probably have reached all the pleader had in mind when he drew the second replication.

2. The defendant takes two objections to the third replication : first, that it should have concluded to the country ; and second, that the master is not liable for the excess of his servant. .The answer to the first objection is, that the replication contains new matter, to wit, that the trespasses were committed to a greater degree and with more force and violence than was necessary for the purposes mentioned in the plea. This new matter the defendant should have an opportunity to answer, and therefore the replication was properly concluded with a verification.

As to the second objection, the allegation in the replication is, that the defendant Rust, of his own wrong, committed the said trespasses to a greater degree, «fee. It does not raise the question whether Rust is answerable for the excess of his servant Winton. That question may arise on the trial, if Rust takes issue on the alleged excess. This replication is- good.

3. The fourth replication, or new assignment, is bad.- It-departs from the precedents in not alleging that the trespass-newly assigned is another and different trespass from those mentioned in the plea. Gould’s PL 366, n. (14.) p. 457,. § 76. 1 Saund. 299, n. (6). 1 Chit. Pl. 612. 2 id. 701, 705. By omitting to traverse the plea, the plaintiff admits that the supposed trespasses in the house are justified; and yet he newly assigns those with other trespasses, and thus calls on the defendant to answer again, a matter which had already been sufficiently answered. If in truth, as the plaintiff alleges, there was but one continued trespass from the beginning in the house to the ending in the street, the plaintiff has, perhaps, covered the whole ground by his third replication that the defendant committed the trespasses-to a greater degree' and with more force and violence than was necessary for the purposes mentioned in the plea-But however that may be, there is no doubt that the plaintiff might have new assigned as to time, place, or any other material circumstance. He might have alleged that he commenced his action for an assault and battery in the street; and then have concluded according to the precedents, that the trespasses newly assigned were other and different from those mentioned in the plea. The defendant would then have answered, either denying or justifying the assault in the street. As the new assignment is drawn, it is difficult to say how the defendant can plead to it, if he has a good answer to offer; but if the pleader had followed the precedents, there would have been no dificulty in answering.

The plaintiff is entitled to judgment on the demurrer to the third replication to the second plea of Rust; and Rust is entitled to a judgment on the demurrers to the second and fourth replications to his second plea. The defendant Win.ton is entitled to judgment on the demurrers to the replications to his pleas.,

Ordered accordingly,.