Peter F. Zimmer and Henry S. Keyser, Appellants, v. Frank Getter, Respondent

Peter F. Zimmer and Henry S. Keyser, Appellants, v. Frank Getter, Respondent. Third Department; November 10, 1909. Justice’s Court — action for trespass — claim of title by defendant — ruling approved. Where a justice of the peace in making a ruling on a question of evidence states that the plaintiff cannot prove or recover for trespass upon any lands to which the defendant asserts title by answer and dismisses the action as to such trespasses, it is error to reverse a verdict, otherwise warranted by the evidence, on the ground that the jury may have allowed damages for trespass upon a right of way claimed by the defendant. Appeal by the plaintiffs, Peter F. Zimmer and another, from a judgment of the County Court of Schoharie county in favor of the defendant, entered in the office of the clerk of said county on the 7th day of June, 1909, pursuant to an order of said County Court bearing date the 17th day of May, 1909, and entered in said clerk’s office, reversing a judgment in favor of the plaintiffs theretofore rendered by a justice of the peace of the town of Schoharie. Alberti Baker, for the appellants. Wallace H. Sidney [Seward E. Tennant with him on the brief], for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The plaintiffs brought an action in Justice’s Court to recover for various trespasses committed by the defendant upon their farm. By his answer the defendant alleged that some of the acts alleged as trespass were the use by the defendant of two certain roads over the plaintiffs’ farm upon which defendant had a right of way and easement, and that the title to real estate will come in question as to such trespasses. Upon a proper bond being given the case was dismissed so far as related to any acts done upon the alleged rights of way. The alleged rights of way were very indefinitely described in the answer. It appeared upon the trial that the defendant had passed over various parts of the plaintiffs’ farm about one hundred times, and that about seventy-live of such times were not upon either of the alleged rights of way, and plaintiffs had a verdict 'for eighteen dollars damages, upon which judgment was entered, with costs. The County Court reversed the judgment upon the ground that acts of trespass were shown, or the jury might have allowed damage for acts done upon the rights of way. I think this conclusion is unwarranted. One of the plaintiffs was asked what he had seen the defendant do in traveling over the farm. Objection was raised that the question must be confined to the parts of the farm not embraced in the plea of title, to which the court replied: “ The court decides that the plaintiffs cannot prove or recover for any trespass or trespasses on any lauds to which defendant set up title by answer, and to which'the court dismissed the action, and allows the question to be answered.” The answer was about “ one hundred times,” the witness then saying that of the one hundred times about seventy-five times were not embraced within either of the alleged rights of way referred to in the answer. I think the decision of the justice limited the jury to damages solely committed off the rights of way, and that the defendant suffered no injury therefrom. The recovery was not large, was amply justified by the acts shown to have been committed off the rights of way, and I think the County Court did not view the proceedings in Justice’s Court with the liberality which an appellate courtis required to exercise with reference to them. A careful examination of the record shows no error to the substantial prejudice of the defendant. The judgment of the County Court should, therefore, be reversed, and the judgment of the justice affirmed, with costs in this court and in the County Court. All concurred. Judgment of the County Court reversed and judgment of the Justice’s Court affirmed, with costs in this court and in the County Court.