Niles v. Lindsley

8 How. Pr. 131 | The Superior Court of New York City | 1852

Duer, Justice.

I am inclined to think that the certificate of the justice who tried the cause, is the only evidence I can receive as to whether or not “ the title came in question at the trial.” I must, therefore, in the absence of that confine myself to the pleadings.

I am of opinion that the question of title arises upon the pleadings within the meaning of the statute. It is directly put in issue by the first portion of the complaint and answer. The allegation in a subsequent part of the answer, that defendant went upon the lots by leave of the plaintiff’s agent, does not do away with the effect of that issue. As the plaintiff was compelled to come prepared to prove title, the admission of his title by defendant at the trial ought not to deprive him of his right to costs; and even could I adopt the defendant’s present construction of his answer, I think that having taken issue upon the claim of ownership in the complaint, he is estopped from denying that the plaintiff was bound to prove title upon the trial. If he meant by his answer to admit the title, he should not have made the issue.

The motion must therefore be denied with costs.

The Chief Justice, Campbell and Bosworth, Justices, concurred. (a.)

(a.) Ex relatione W. W. Niles, Esq.