23 How. Pr. 463 | N.Y. Sup. Ct. | 1862
The evidence clearly shows that the cow was wrongfully and negligently on the defendant’s road. In such a case no action lies for her loss. (Munger v. Tonawanda Rail Road Co., 4 N. Y. Rep. 349.)
But for the killing of the bull a proper case was made out; certainly a prima facie case for submission to the jury, and their verdict for damages for his loss could not be disturbed.
A question was made as to the admission of evidence as to the sufficiency of the fence, which the defendant was required to make and maintain. (See Laws of 1854, p. 611, § 8.) A witness (Cheever) was asked by the plaintiff’s counsel to
The only remaining question is, could and should the county court have reversed the judgment of the justice as to the damages for the cow, and affirmed it as to the bull?
It is objected by the defendant that a county court cannot reverse in part and affirm in part a justice’s judgment for entire damages. And the case of Kasson v. Mills, (8 How. Pr. Rep. 377,) is cited to that effect. The case sustains the position in terms, but the facts were wholly unlike the facts here. I have carefully examined all the cases referred. to in Kasson v. Mills, and am of opinion that the county court had authority, in this case, to reverse the judgment in part and affirm it in part, and should have exercised it.
Suppose an action brought upon two several promissory notes, to one of which the defendant proved a clear legal defense of usury, but none to the other, and the court gave judgment for. both. Would there be any difficulty in giving judgment, on appeal, for the valid note, and reversing it as to the void note ? Suppose an action for two penalties alleged to have been incurred on different days, judgment for both and illegal as to one, on appeal the judgment would be affirmed as .to the one and reversed as to the other. This last case has been expressly decided, in Massachusetts, by the highest court of that state, and I find nothing in this state in conflict with it. (Commonwealth v. Derby, 13 Mass. Rep. 433.) I
Hogeboom, Peckham and Miller, Justices.]
The judgment of the county court is reversed, and that of the justice affirmed as to $25 damages and the costs. Ho costs allowed on this appeal.
I concur in the above opinion that the justice should have rendered judgment for the plaintiff for $25, (instead of $75,) and that the county court should have reversed it as to $50, and affirmed' it as to $25, instead of reversing altogether, and that this error should be corrected. But whether the proper mode of correcting it is hy reversing ■both judgments, leaving the plaintiff to sue anew, or whether it may be disposed of as done in the opinion of Justice Peck-ham, I have not as yet examined.
Miller, J. concurred.
Judgment of the "county court reversed, and that of the justice affirmed as to $25 and the costs.