#### PHILLIPS v. COVELL.

(Supreme Court, General Term, Fifth Department,

June 20, 1894.)

1. Appeal—Review—Objections not Raised Below.

An objection that a witness was improperly allowed to give his opinion will not be considered on appeal, where it was not raised on the triaL 3. Same—Reversal—Nominal Pamages.

In an action for trespass on land, it appeared that from 60 to 100 of defendant’s sheep went on plaintiff’s land a number of times; that they were on the land about four weeks; that they broke into plaintiff’s wheat field and meadow; that plaintiff only cut 10 loads of hay from the part of the meadow on which the sheep were, while 14 loads were had from the part of the person who cut the hay on shares. *Held,*that plaintiff was entitled to recover substantial damages, and the rule that a verdict for defendant in a justice court will not be reversed merely to enable plaintiff to recover nominal damages does not apply.

Appeal from Wayne county court.

Action by Joseph Phillips against Charles H. Coveil for trespass on land. Prom a judgment of the county court reversing a judgment in favor of defendant, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

J. W. Dunwell, for appellant.

C. H. Ray, for respondent.

*614HAIGHT, J.

This action was brought to recover damages fan trespass on lands. The plaintiff testified, in substance, that he knew the defendant’s sheep in 1889; that' they broke into his meadow in 18.89, 1891, and 1892, a good many times; there were 90 or 100 of them; that in 1892 they were in there three weeks, and they broke into his wheat field and meadow. He further testified that he was a farmer, and that he knew the worth of the damages done; that- they had damaged his meadow to the amount of $10, and his wheat $5. His son, Charles Phillips, testified that he saw the sheep in his father’s lot about the 15th of October, 1891; that they were there three or four weeks, and that there were 80 or 90 of them; that he cut hay on shares, and that on his part he had 14 loads, and that his father on his part, where-the sheep were, had but 10 loads; that the sheep were on- the meadow after the wheat was up; that he was a judge of the damages done; and that the damages to the meadow were $10, and to-the wheat $5. To the same effect was the testimony of Frank Phillips and Merril Phillips. This was the evidence given on behalf of the plaintiff. ■ No evidence was presented on behalf of the defendant. The jury rendered a verdict, in favor of the defendant for no cause of action, upon which judgment was. entered. An-, appeal was taken to the county court, where the judgment was-reversed.

The undisputed' evidence in the case showed a trespass upon the-lands of the plaintiff by the sheep of the defendant, variously estimated in numbers from 60 to 100. It appears that at times they were upon the meadow lands, and at other times upon the wheat field of the plaintiff, and, on one occasion, after the wheat was: up. It does not appear at what particular place they entered the-plaintiff’s inclosure; but, as we understand, it is the duty of the-owner of animals to restrain them from entering upon the premises of others, and, in case of failure so to do, he is liable to respond in damages for the injury done, unless he can show that the-entrance was effected through the fault of the person claiming to-be damaged; as, for instance, where tjie entrance was through a-defective fence, which it was the duty of such person to maintain: and keep in repair. Deyo v. Stewart, 4 Denio, 101.

It is claimed that the plaintiff failed to prove any damages; that the testimony of the witnesses giving their opinion as to the value-of the damages was improper, and should be disregarded. Where-there has been a trial in the justice’s court before a jury, and a verdict rendered for the defendant, the judgment will not be reversed; on appeal merely to enable the plaintiff to recover nominal damages, even though the verdict may be against the evidence. Stephens v. Wider, 32 N. Y. 351. So that the question presented is as to whether the plaintiff was entitled to recover more than nominal damages. It is quite possible that the opinion given by the plaintiff’s witnesses would have been incompetent had an objection been taken thereto, but no objection was made, and on an appeal it is too late for the defendant to urge the insufficiency of the evidence, which was received without his objection. Knell v. *615Stephan (Sup.) 20 N. Y. Supp. 393; McLaughlin v. O'Toole (Com. Pl. N. Y.) Id. 653; Mead v. Shea, 92 *N.*Y. 122-127. On referring to the facts, we think sufficient has been stated to show that the plaintiff was entitled to more than nominal damages. The sheep were upon his meadow lands a number of times. They were there from three to four weeks,—one witness says from four to six weeks, —and during this time must have pastured thereon. One witness testified that he cut 14 loads of hay on his part of the meadow, and that his father only cut 10 loads on his part, where the sheep had been; that they were upon his wheat lot after the wheat was up. The habits of sheep to run about over the lands, and feed upon that which is growing, is well known and understood. The jurors doubtless had the right to disregard the opinions given by the plaintiff’s witnesses, but in doing so they should have substituted their own judgment as to the damages sustained, and awarded a verdict therefor. The judgment of the county court appealed from should be affirmed, with costs. All concur.