1 Wend. 380 | N.Y. Sup. Ct. | 1828
By tlie Court,
It is not denied that Pen-field was the owner in fee of the mills which are alleged to have been injured by the unlawful conduct of the defendants; but is contended, that from September, 1819, to August, 1826, the period within which the injury was sustained, as alleged in the declaration, the mills were not in his possession, but in the possession of Gelston, his tenant. Gelston, who is the son-in-law of the plaintiff, was examined as a witness, and his testimony contains all the evidence upon this point. He stated that from 1819 to 1825, he occupied the plaintiff’s oil-mill and merchant-mill on shares : that there was no certain agreement as to the terms; but that about twq years before this suit, they had a settlement, and turned the use of the mills into rent. That he aüewed the plaintiff an average rent of a little less than $1000 p6r annum for the flouring mill, and $150 for the oil-mill. That in 1825, he agreed with plaintiff, to occupy the flouring mill at $1000
I shall simply remark, that the charge of the judge appears to me to be substantially in accordance with the principles established by this court in the analogous cases of Palmer v. Mulligan, (3 Caines, 307,) of Platt v. Johnson and Root, (15 Johns. R. 213,) and Merritt v. Brinckerhoff, (17 Johns. R. 306,) and that it is not a case in which the court would in
New trial granted.