Home/New York Court of Appeals/Kelly v. New York & Manhattan Beach Railway Co.

Kelly v. New York & Manhattan Beach Railway Co.

81 N.Y. 233, 1880 N.Y. LEXIS 225
CourtNew York Court of Appeals
DecidedJune 1, 1880
StatusPublished
Cited by10 cases

This text of 81 N.Y. 233 (Kelly v. New York & Manhattan Beach Railway Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. New York & Manhattan Beach Railway Co., 81 N.Y. 233, 1880 N.Y. LEXIS 225 (N.Y. 1880).

Opinion

Rapallo, J.

The complaint alleged title in the plaintiff, as well as possession, and both allegations were specifically put in euiss by the answer. It is contended, however, that inasmuch as title in the defendant was hot set up, but only a license from the plaintiff was alleged, and proof of possession in the plaintiff would have sufficed to maintain the action, the issue upon the question of title was immaterial. This position might be sound if the complaint claimed damages only for the entry and invasion of the plaintiff’s possession, but,such is not the case. It claims damages for injury to the freehold by the deposit of earth, sand, and rubbish thereon. To entitle the plaintiff to recover for the injury to the freehold, it was necessary to allege and prove his title. The case is a close one, but we think the preponderance of the argument is in favor of the position of the General Term, that the question of title arose upon the pleadings, and a certificate that it arose upon the trial was consequently unnecessary to entitle the plaintiff to costs.

The order should be affirmed.

All concur.

Order affirmed.

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

Related

Lopiano v. Telephone Co.
139 Misc. 831 (New York Supreme Court, 1931)
Indiana Pipe Line Co. v. Christensen
123 N.E. 789 (Indiana Supreme Court, 1919)
Consolidated Cal. & Va. Min. Co. v. Baker
131 F. 989 (U.S. Circuit Court for the District of Nevada, 1904)
Holmes v. Seaman
100 N.W. 417 (Nebraska Supreme Court, 1904)
Lynk v. . Weaver
28 N.E. 508 (New York Court of Appeals, 1891)
Bruen v. Manhattan Railway Co.
14 N.Y.S. 285 (New York Court of Common Pleas, 1891)
Quin v. Winter
22 Abb. N. Cas. 462 (City of New York Municipal Court, 1889)
Bailey v. Daigler
3 N.Y.S. 718 (New York Supreme Court, 1889)
Crowell v. Smith
42 N.Y. Sup. Ct. 182 (New York Supreme Court, 1885)
Boardway v. Scott
38 N.Y. Sup. Ct. 378 (New York Supreme Court, 1884)

Cite This Page — Counsel Stack

Bluebook (online)
81 N.Y. 233, 1880 N.Y. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-new-york-manhattan-beach-railway-co-ny-1880.