Myers v. Parker — 81 N.Y. Sup. Ct. 129

Majority

p. 129

Abel S. Myers, Respondent, v. James Y. Parker and Emma Parker, Appellants.

Headnote

Trespass by cattle — defense of agreement to pasture.

An agreement by the plaintiff to pasture the defendants’ oattle is no defense to an action for trespasses committed by the cattle in the plaintiff’s garden and oatfield, unless the agreement is shown to be one to pasture them in the garden and oatfield, or unless it is shown that the cattle strayed to those places through some fault of the plaintiff.

Appeal by the defendants, James Y. Parker and Emma Parker, from a judgment of the County Court of Sullivan county, entered In the office of the clerk of that county on the 10th day of April, 1893, in favor of the plaintiff, upon the reversal of a judgment of a justice of the peace in favor of the defendants.

Wilton Bennett, for the appellants.

Chas. II. Stage, for the 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.

The 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 oatfield, where the alleged trespasses were committed. Plaintiff’s agreement to pasture the cattle was no defense unless shown to be one to pasture them in plaintiff’s garden or oatfield, or unless it appeared that the cattle strayed to those places through some fault of plaintiff’s. No such proof was produced by the defendants. On the evidence,_ we think, plaintiff was entitled to judgment.

p. 130

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. Hid you consider your cows in plaintiff’s care so long as you rented pasture from him? [Objected 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 defendants’ land ? [Same objection, same ruling.] A. Yes, sir.”

We think that this evidence was improperly received. The objections thez-eto of plaintiff should have been sustained. This evidence may have affected the verdict of the juz-y.

Our conclusion is that the judgment of the County Court should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concuz-z-ed.

Judgment affirmed, with costs.