Myers v. Parker — 26 N.Y.S. 308

Majority

p. 308

(74 Hun, 129.)

MYERS v. PARKER et al.

(Supreme Court, General Term, Third Department.

December 6, 1893.)

Headnote

1. Trespassing Animals—Agreement to Pasture.

In an action for trespass by defendant’s cattle in plaintiff’s garden and oat field, plaintiff’s existing agreement to pasture said cattle Is no defense, unless it appear that the cattle strayed there through some fault of plaintiff.

2. Same—Opinion Evidence.

Defendant could not testify that he considered his cattle In plaintiff’s care so long as he rented pasture from plaintiff, and that for that reason he denied the trespass.

Appeal from Sullivan county court.

Action by Abel S. Myers against James Y. Parker and Emma Parker for trespass by defendants’ cattle. From a judgment of the county court reversing the justice’s judgment in favor of defendants, defendants appeal.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Wilton Bennet, for appellants.

Chas. H. Stage, for respondent.

This action was commenced in a justice’s court, and, on a verdict of a jury, judgment was rendered in favor of defendants for costs. The county court of Sullivan county reversed such judgment, and defendants appeal to this court.

dhie complaint stated a cause of action for trespasses of defendants’ cattle on premises of plaintiff. The alleged trespasses were clearly shown by testimony produced by plaintiff which was not contradicted. The defendants undertook to show that plaintiff, at the time of the alleged trespasses, was under an agreement to pasture defendants’ said cattle; but no attempt was made to show a contract to so pasture them in plaintiff's garden or oat field, where the alleged trespasses were committed. Plaintiff’s agreement to pasture the cattle was no defense, unless shown to be one to pasture

p. 309

them in plaintiff’s garden or oat field, or unless it appeared that the cattle strayed to those places through some fault of plaintiff. No such proof was produced by the defendants. On the evidence, we think plaintiff was entitled to judgment.

Again, on the trial, the following questions were asked defendant Parker, as a witness, and he was allowed to give the following answers, viz.:

“Q. Did you consider your cows in plaintiff’s care so long as you rented pasture from him? (Objected to as improper and immaterial, and not within the issues raised by the answer. Objection overruled.) A. Yes, sir. Q. And for that reason you say that these cattle did not commit any trespass on plaintiff’s land? (Same objection. Same ruling.) A. Yes, sir.”

We think that this evidence was improperly received. The objections thereto of plaintiff should have been sustained. This evidence may have affected the verdict of the jury. Our conclusion is that the judgment of the county court should be affirmed, with costs. All concur.