Conkey v. Kenyon — 47 N.Y. St. Rep. 511

Majority

p. 511

Almyron Conkey, Resp’t, v. Charles Kenyon, App’lt.

(Supreme Court, General Term, Third Department,

Filed September 14, 1892.)

Headnote

Trespass—Appeal—Technical objections—When to be made.

On appeal by defendant from a judgment of a justice’s court in an action for trespass upon plaintiff’s farm, it was contended for the first time that it did not affirmatively appear that the alleged trespass was committed in the state or that plaintiff owned or was in possession of the farm in question, and therefore that a motion for a non-suit was improperly denied. Held, that the judgment should be affirmed as there was sufficient evidence before the justice to uphold it, and the objections raised on appeal were technical in character and should have been specifically made in the trial court.

Appeal from the judgment of the county court of St. Lawrence county, affirming a judgment of a justice of the peace.

D. M. Robertson (Walter E. Ward, of counsel), for app’lt; Chamberlain & Sale ( Worth Chamberlain, of counsel), for resp’t.

—The complaint before the justice was for trespass upon the plaintiff’s farm and injury to the plaintiff’s crops. The answer was a denial, "and an allegation that the trespass was caused by the defective division fence which plaintiff was bound to maintain. On the trial the evidence tended to show that the premises on which the alleged trespass was committed was in St. Lawrence county, but no direct proof of the town or county in which the locus in quo was situate was given. The justice ordered judgment from which an appeal was taken to the county court, when the judgment of the justice was affirmed, and the defendant appeals to this' court.

We think the judgment should be affirmed for the reason stated in the opinion of the county judge. There was sufficient evidence before the justice to uphold the judgment and the objections raised here were not. specifically made in the court below.

As they are of a technical character, they should have been specifically stated before the justice, so that the defects of proof if any could have been obviated, or an opportunity given for that purpose.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.