Terboss v. Williams

5 Cow. 407

• Court: New York Supreme Court
• Decided: February 15, 1826
• Status: Published

Opinion

Curia, per Woodworth, J.

The avowry alleges a subsisting demise and possession by the plaintiff, when the defendant distrained the goods, fraudulently removed. The avowry is, therefore, sufficient. (The opinion expressed in Burr v. Van Buskirk, (3 Cow. 271,) that a distress off the premises can only be made within thirty days after the rent fell due, was not necessary to the decision of that cause ; and on more full consideration must be overruled.

(a)

The plea substantially takes issue on the material fact in the avowry; for if the plaintiff’s interest ceased on the 1st May, 1823, and he removed off the premises before the time, when, &c. it negatives the averment, that the plaintiff was possessed, &c. as tenant to the defendant, at the time of making the distress. This fact being admitted by the demurrer puts an end to the right of distress. It is said, the plea ought to have concluded to the country. This is correct; but it is not cause for a general demurrer. (2 Saund. 190, n. 5.)

I am of opinion that the plaintiff is entitled to judgment, with leave to the defendant to amend.

Rule accordingly.

Vid. Reynolds v. Shuler, ante, 323.