40 Barb. 228 | N.Y. Sup. Ct. | 1863
Lead Opinion
The defendant, on the trial of this cause, offered to show title to the premises, upon which the alleged trespasses were committed, out of the plaintiff, under a lease executed by the plaintiff’s grantor prior to the conveyance under which the plaintiff claimed; and that 'they had been occupied by the lessee and his grantees, under the lease, up to the time of the trial. The evidence was objected to by the plaintiff and excluded by the judge. The same proposition was renewed afterwards, for the purpose of rebutting the evidence of constructive possession given by the plaintiff, and the same ruling was made by the judge. The defendant excepted to the decisions of the judge.
The evidence offered by the defendant presents two questions : First. Was it proper for the 'defendant to show title in a third person without connecting himself with it, and without alleging it in his answer ? Second. Was the evidence offered proper as rebutting the evidence given by the plaintiff of constructive possession ?
I. As to the first question, I am of the opinion that as the testimony stood, the evidence was not competent for the purpose of showing title out of the plaintiff. It is a general rule that proof of actual possession, even although it be wrong, is sufficient to support the action of trespass, against a mere stranger or wrongdoer, who has neither title nor authority from the legal owner. (2 Greenl. Ev. 597, § 618. 2 Sand, on Pl. and Ev. 865, 866. 2 Ph. Ev. 185. 1 Cowen
With proof that the plaintiff had title and at least a constructive possession, and that the defendant had knowledge that he was cutting on the plaintiff’s premises, and with no evidence to show any right in the defendant and no connection with a stranger who claimed title, I think the defendant was a mere intruder, and the evidence offered would not, under the circumstances, justify or excuse the act, or present an available defense.
II. An answer to the second question must, I think, depend very much upon a decision of the point urged, that in order to be made available it should have been set up as a special defense in the answer, and that a general denial is insufficient. I have refrained from an examination of this question under the first inquiry, because it was manifestly clear that the objection to the evidence could be sustained upon the grounds which I have in that connection discussed.
•Many of the cases cited to sustain the doctrine that the proof offered was not admissible under the pleadings, have
In Walrod v. Bennett, (6 Barb. 145,) it was decided that an averment in an answer that the plaintiffs were not joint owners of the goods sued for, was material, and new matter which required a reply. The decision was put upon the ground that it showed a defect of parties and was specially provided for by the code. I do not discover that it has any particular bearing upon the point here presented.
In Squires v. Seward, (16 How. Pr. 479,) the action was for unlawfully breaking into the close of the plaintiff, and there was a general denial in the answer. The general term reversed the decision of the special term, directing the clerk to adjust the costs of the plaintiff upon the ground that title came in question. The complaint did not allege possession. Marvin, J. says: “ The complaint was in the usual' form, and title to real property is not raised by such a complaint, in the sense.of the statute.” No question arose like .the one now presented.
In Paddock v. Wing, (16 How. Pr. Rep. 547,) which was an action for taking and converting personal property, from the possession of the plaintiff, the defendant alleging that it was taken on execution in his favor, it was held that the defendant could not on the trial introduce evidence to show that the property never belonged to the plaintiff but that the witness was the owner of it, for the purpose of showing that the plaintiff was not the. real party in interest, and that the plaintiff being in possession had an interest in it, so that he could maintain that action against a stranger or a naked wrongdoer. It will be observed that no question was here made as to controverting the. plaintiff’s possession. These are the principal cases in point relied upon by the plaintiff, and I think it may be said that none of them bear directly upon the question whether the evidence was admissible to rebut the plaintiff’s evidence of possession. ., .
In Robinson v. Frost, (14 Barb. 537,) it was held that in an action for the conversion of personal property, similar to the former action of trover, an answer which denies each and every allegation in the complaint is a denial not only of the conversion, but of the plaintiff’s title; and under it evidence that the plaintiff had no title is admissible. In Corwin v. Corwin, (9 Barb. 219,) it was held that in an action to recover lands, where the plaintiff claims the lawful title, the defendant may controvert the allegation of title in express words, or may set forth facts to show that the plaintiff has not the title; but by omitting to put the title in issue by a general or specific denial, he takes upon himself the burden of stating facts in his answer which taken to be true are sufficient to show that the plaintiff has no title. (See also Schermerhorn v. Van Allen, 18 Barb. 29; Andrews v. Bond, 16 id. 633.)
After discussing the authorities in reference to an answer alleging that the plaintiff is not the real party in interest, and what it should contain, the learned author of Van Santvoord’s Pleading lays down the following rule: “ Where an action respecting property, personal or real, is sought to be sustained on a mere general allegation of possession and property or ownership, this may be put in issue by a denial,
With the views expressed it is not important to consider the question raised by the plaintiff’s counsel as to. the effect of the instrument sought to be introduced in evidence.
For the error of the judge in excluding the evidence offered a new trial should be granted, with costs to abide the event.
Beckham, J. concurred.
Dissenting Opinion
dissented; holding that the case was tried as one of boundary, and that the defense was not within the pleadings, and therefore properly ruled out.
New.trial granted.
Gould, Peckham and Miller, Justices.]