Kelly v. New York & Manhattan Beach Railway Co.
Cases that cite this one
9 later published cases cite this decision.
- Lopiano v. Telephone Co. (New York Supreme Court 1931)
- Indiana Pipe Line Co. v. Christensen (Ind. 1919)
- Holmes v. Seaman (Neb. 1904)
- Consolidated Cal. & Va. Min. Co. v. Baker (U.S. Circuit Court for the District of Nevada 1904)
- Bruen v. Manhattan Railway Co. (New York Court of Common Pleas 1891)
- Bailey v. Daigler (New York Supreme Court 1889)
- Quin v. Winter (City of New York Municipal Court 1889)
- Crowell v. Smith (New York Supreme Court 1885)
- Boardway v. Scott (New York Supreme Court 1884)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The complaint alleged title in the plaintiff, as well as possession, and both allegations were specifically put in euiss by the answer. It is contended, however, that inasmuch as title in the defendant was hot set up, but only a license from the plaintiff was alleged, and proof of possession in the plaintiff would have sufficed to maintain the action, the issue upon the question of title was immaterial. This position might be sound if the complaint claimed damages only for the entry and invasion of the plaintiff’s possession, but,such is not the case. It claims damages for injury to the freehold by the deposit of earth, sand, and rubbish thereon. To entitle the plaintiff to recover for the injury to the freehold, it was necessary to allege and prove his title. The case is a close one, but we think the preponderance of the argument is in favor of the position of the General Term, that the question of title arose upon the pleadings, and a certificate that it arose upon the trial was consequently unnecessary to entitle the plaintiff to costs.
The order should be affirmed.
All concur.
Order affirmed.
Case-law data current through September 30, 2026. Source: CourtListener bulk data.