Lindner v. Szuster

245 A.D. 730

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1935
• Status: Published

Opinion

Action for trespass upon farm lands. Order granting defendant’s motion to dismiss the amended complaint as insufficient in law, reversed on the law, with ten dollars costs and disbursements, and the motion denied, with leave to defendant to serve an answer within ten days from the entry of the order herein. The complaint alleges that the plaintiff is in possession of the Randall farm by virtue of a lease from the owner thereof It gves the description of that farm by metes and bounds. There is an allegation that defendant trespassed upon “ that portion of the said farm known as the orchard.” This sufficiently identifies the portion of the farm claimed to have been subjected to trespass. The allegation giving the description of “ the orchard ” by metes and bounds cannot by an inspection of the pleading be said not to be within the Randall farm. Whether that description falls without the Randall farm is a matter for the trial, at which time a survey or surveys may be offered in evidence to disclose whether the description of the orchard by metes and bounds set out in the complaint falls within the lines of the description of the Randall farm, by metes and bounds, set out in the complaint. The allegation identifying the part of the farm trespassed as that portion of the said farm known as “ the orchard ” might well be sufficient without the metes and bounds description of said orchard alleged in the complaint. Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ., concur.