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Niver v. Niver

43 Barb. 411 Court N.Y. Sup. Ct. Decision date 1864-12-05 English

Delivered by Peckham, J.

Contents

Majority

p. 411
Elizabeth Niver vs. Daniel W. Niver.

Headnote

In an action for a willful and wrongful injury to the plaintiff’s property, and for wrongfully and willfully depriving her of the use of certain parts thereof, the defendant is liable to be arrested and imprisoned upon execution.
THIS was an appeal from an order made at a special term refusing to set aside a ca. sa. issued against the defendant.
A. B. Voorhees, for the motion.
Ira Shafer and J. Lawton, opposed.

By the Court,

The motion is made upon the ground that the defendant is not liable to be imprisoned upon an execution in this case. The complaint is for a willful and wrongful injury to the plaintiff’s property which she obtained under the will of her father, and for wrongfully and willfully depriving her of the use of certain parts of such property. The complaint sets forth the will of her father, the injuries complained of, and then asks that the rights and interests of the parties to this action under said will, (the defendant, her brother, being a devisee therein,) may be adjudged and determined ; that the defendant may be required to remove certain obstructions he had interposed to her proper use of her property; that an injunction issue against him, enjoining him from interfering therewith, and for judgment for an injunction and for damages to $500 for the said injuries, &c.

The complaint sets up no alleged doubt or difference between the parties as to their true rights under said will; it presents no question of doubt, and it makes no allegation that the defendant did what he did under a claim or pretense that he had the right so to do under said will. On the contrary, all the allegations on that subject are that he did the

p. 412
wrongs willfully, wrongfully and illegally. The gravamen of the action is the wrong done to the plaintiff’s property. There is but one count, and that asks redress for past wrongs and protection for the future. Lambert v. Snow, ( 17 How. 517 ,) has no application to such a case. There, there were two distinct causes of action, for one of which the defendant could be held to bail and not for the other. Here are not two causes of action. The action is substantially for injuries; willful injuries to the plaintiff’s property.

[Albany General Term,

December 5, 1864.

Hor have the other cases cited by the defendant’s counsel any legitimate bearing here. ( 32 Barb. 83 . 1 Hill, 225 . 7 id. 182. 2 Cowen, 282.) This case comes within the plain provision of the code (§ 179) for injuring property. The order appealed from is affirmed, with $10 costs.

Peckham, Miller and Ingalls, Justices.]

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