Silberman v. New Amsterdam Gas Co.

New York Supreme Court

Silberman v. New Amsterdam Gas Co.

30 Misc. 42, 61 N.Y.S. 699

DecidedDecember 15, 1899

StatusPublished

This text of 30 Misc. 42 (Silberman v. New Amsterdam Gas Co.) 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

Silberman v. New Amsterdam Gas Co., 30 Misc. 42, 61 N.Y.S. 699 (N.Y. Super. Ct. 1899).

Pincite

Opinion

Giegerich, J.

The complaint proceeds upon trespass, founded upon a forcible entry, as well as upon a cause of action for assault and battery, following the trespass upon the property. A defense is set up which in substance is based upon an invitation to enter the premises, a legal duty to accept the invitation, a refusal by the plaintiff to fulfill the invitation by admission to the premises, and the fact that entry was then made notwithstanding the refusal. Upon demurrer to the defense, it is claimed by the defendant that the allegations are directed to the cause of action for a trespass upon the property,' and that, since the defense could not apply to the cause of action for assault, the omission of words applying it to the trespass is immaterial. Clearly, however, the defense thus sought to be set up discloses no justification for the trespass. The invitation to enter the premises could have implied only an invitation to enter peaceably, and the refusal of admission merely operated as a revocation of the invitation; in no aspect could the invitation be viewed as anything greater than a license, and according to the allegations of the defense, the trespass was not justified by the license, but was perpetrated solely because of its revocation. But, the defendant asserts, conceding the insufficiency of the defense, as in bar, the matter alleged should be viewed as proceeding in mitigation of damages as a partial defense. This contention must fail through the omission of an allegation that the defense was intended as a partial defense (Code Civ. Proc., § 508; Thompson v. Halbert, 109 N. Y. 329; Mason v. Dutcher, 33 N. T. Supp. 689), since, while it has been held that where the nature of the defense is partial, and so obviously that there can be no possibility of dispute, the special designation may be dispensed with (Howd v. Cole, 74 Hun, 121), in the present case the doubt as to the meaning of the defense is so clearly shown by the argument adopted in its support as to leave nothing for the court to [44]*44add. The demurrer is sustained, with costs, with leave to amend within twenty days upon payment of costs.

Demurrer sustained, with costs, with leave to amend within twenty days.

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

Giegerich, J.

The complaint proceeds upon trespass, founded upon a forcible entry, as well as upon a cause of action for assault and battery, following the trespass upon the property. A defense is set up which in substance is based upon an invitation to enter the premises, a legal duty to accept the invitation, a refusal by the plaintiff to fulfill the invitation by admission to the premises, and the fact that entry was then made notwithstanding the refusal. Upon demurrer to the defense, it is claimed by the defendant that the allegations are directed to the cause of action for a trespass upon the property,' and that, since the defense could not apply to the cause of action for assault, the omission of words applying it to the trespass is immaterial. Clearly, however, the defense thus sought to be set up discloses no justification for the trespass. The invitation to enter the premises could have implied only an invitation to enter peaceably, and the refusal of admission merely operated as a revocation of the invitation; in no aspect could the invitation be viewed as anything greater than a license, and according to the allegations of the defense, the trespass was not justified by the license, but was perpetrated solely because of its revocation. But, the defendant asserts, conceding the insufficiency of the defense, as in bar, the matter alleged should be viewed as proceeding in mitigation of damages as a partial defense. This contention must fail through the omission of an allegation that the defense was intended as a partial defense (Code Civ. Proc., § 508; Thompson v. Halbert, 109 N. Y. 329; Mason v. Dutcher, 33 N. T. Supp. 689), since, while it has been held that where the nature of the defense is partial, and so obviously that there can be no possibility of dispute, the special designation may be dispensed with (Howd v. Cole, 74 Hun, 121), in the present case the doubt as to the meaning of the defense is so clearly shown by the argument adopted in its support as to leave nothing for the court to [44]*44add. The demurrer is sustained, with costs, with leave to amend within twenty days upon payment of costs.

Demurrer sustained, with costs, with leave to amend within twenty days.

Cite This Page — Counsel Stack

Bluebook (online)

30 Misc. 42, 61 N.Y.S. 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silberman-v-new-amsterdam-gas-co-nysupct-1899.

Opinion

Related

Cite This Page — Counsel Stack