Niggli v. Foehry

New York Supreme Court

Niggli v. Foehry

31 N.Y.S. 931, 90 N.Y. Sup. Ct. 269, 64 N.Y. St. Rep. 658, 83 Hun 269

CourtNew York Supreme Court

DecidedDecember 27, 1894

StatusPublished

Cited by2 cases

This text of 31 N.Y.S. 931 (Niggli v. Foehry) 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

Niggli v. Foehry, 31 N.Y.S. 931, 90 N.Y. Sup. Ct. 269, 64 N.Y. St. Rep. 658, 83 Hun 269 (N.Y. Super. Ct. 1894).

Pincite

Opinion

LEWIS, J.

This action was brought to recover the value of a ■quantity of building stone, which it was alleged in the complaint the defendants had quarried and taken from the plaintiff’s premises in the city of Rochester, without her consent. It was a disputed question of fact upon the trial whether the defendants had taken any stone from the plaintiff’s premises. The defendants owned lands adjoining the plaintiff’s lot, upon which there was a stone quarry, which they were engaged in working. It was the claim of the plaintiff that, in quarrying stone, they trespassed upon and took stone from her premises. The plaintiff’s evidence left the question as to the quantity of stone taken, if any, in very much doubt. The evidence of the defendants tended to negative the plaintiff’s evidence as to their having taken stone from her premises. It was a question of fact for the jury, and they found for the defendants.

It was not competent for the defendants to prove an accord and satisfaction, for no such defense was pleaded. There was evidence admitted tending to prove an accord and satisfaction. It does not appear from the case that there was any objection • made to the admission of this evidence. The plaintiff introduced evidence tending to prove that the removal of the stone by the defendants less[932]*932ened the market value of her premises. There was no allegation in the complaint which justified the litigation of that question, but, the plaintiff having introduced such evidence, it was competent for the defendants to prove the value of the stone in the quarry before it was quarried, as bearing upon the question whether the market value of the premises had been lessened by the removal of the stone.

The error in the charge to the jury as to the measure of damages was fully corrected by the subsequent charge of the court at the request of the plaintiff’s counsel. The true rule of damages was finally presented to the jury, so plainly that it is not at all likely that they were misled by the error in the charge.

The judgment and order appealed from should be affirmed. Alt concur.

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LEWIS, J.

This action was brought to recover the value of a ■quantity of building stone, which it was alleged in the complaint the defendants had quarried and taken from the plaintiff’s premises in the city of Rochester, without her consent. It was a disputed question of fact upon the trial whether the defendants had taken any stone from the plaintiff’s premises. The defendants owned lands adjoining the plaintiff’s lot, upon which there was a stone quarry, which they were engaged in working. It was the claim of the plaintiff that, in quarrying stone, they trespassed upon and took stone from her premises. The plaintiff’s evidence left the question as to the quantity of stone taken, if any, in very much doubt. The evidence of the defendants tended to negative the plaintiff’s evidence as to their having taken stone from her premises. It was a question of fact for the jury, and they found for the defendants.

It was not competent for the defendants to prove an accord and satisfaction, for no such defense was pleaded. There was evidence admitted tending to prove an accord and satisfaction. It does not appear from the case that there was any objection • made to the admission of this evidence. The plaintiff introduced evidence tending to prove that the removal of the stone by the defendants less[932]*932ened the market value of her premises. There was no allegation in the complaint which justified the litigation of that question, but, the plaintiff having introduced such evidence, it was competent for the defendants to prove the value of the stone in the quarry before it was quarried, as bearing upon the question whether the market value of the premises had been lessened by the removal of the stone.

The error in the charge to the jury as to the measure of damages was fully corrected by the subsequent charge of the court at the request of the plaintiff’s counsel. The true rule of damages was finally presented to the jury, so plainly that it is not at all likely that they were misled by the error in the charge.

The judgment and order appealed from should be affirmed. Alt concur.

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Bluebook (online)

31 N.Y.S. 931, 90 N.Y. Sup. Ct. 269, 64 N.Y. St. Rep. 658, 83 Hun 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niggli-v-foehry-nysupct-1894.

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