Radley v. Brice

6 Wend. 539

Opinion

By the Court,

Nelson, J.

A plaintiff is entitled to recover costs “ in all actions in which the title to lands or tenements, or a right of way, or a right by proscription or otherwise, to any easement in any lands, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause.” 2 R. S. 613, § 3. A notice of justification subjoined to the general issue in an action of trespass is equivalent to a special plea, and as effectually puts the title in is sue; the rights of the plaintiff in this case, therefore, are the game ag jf the matter set forth in the notice had been spread out in a plea. The motion is denied.