Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1839-06-06
Ru periOr Court.

Elder lie Foy rs Abraham lie Foy-This action
was tried in the month Of June, eighteen hundred
and thirty eight, by Jury who brought in q verdict
for the plaintiff.
case was made for new trial and argued at the
May term of this Conrt, when the Judges of this
Court upon conside ration, affirmed the Judgment and
denied the motion for trial
The action brought in case by the plaintiff
against the defendant, and alleged that tho defendant
broke and eateredthe premises 5.l Pearl street,
about the 18th Of May, 1885, and from thenceforth
10 the commencement Of this salt had elected, ex-
PEELED, put cut and removed the plaintiff from his
and occupation thereof, and had received
10 the Of him the said exdant, all the rents
issues and profits of said premises and thereby the
plaintiff was deprived OF the use and means of coll
lectng the rents, issues and profits thereof, the
great damage Of the plaintiff, wherefore he brought
suit.
The plea was the general Issue and notice that the
defendant and the plaintiff were tenants in common
Of the said premises and that the rents issues and
profits Of the said premises were received by the de-
iendant, Abraham lie Foy, the tenant in common
of said premises.
Upon the trial it appeared that the premises in
aues tion were left to Abraham lie Foy and Eder lie
foy aud another brother, heirs law Of their ia
Their; that the mother, Hester lie Foy, had life
tate in the premises, and died about the 18th Of May
1885; that Abraham claimed the whole Of the pre-
misses his own as against Edcr, rented the same
out put tenant in, took the rents and profits Of the
estate, and converted and disposed Of the to his
own
Under the Revised Statutes, Eder brought eject.
msnt against the tenant possession pos
session thereof, and upon such recovery put into
possession BY the Sheriff of his share to wit four
ffteenths He also recovered the mesne profits Of
the estate from the tenant long the tenant oc
cuped.
| This action was TO the mesne profits from
the time Of the mothers DEATH in 1885, TO the Ist Of
Nav 1886, when the tenant began to occupy Abraham
lived on the premises himself and residing there he
occupied the premises in part by himself and rented
out part to tenants.
The defendant insisted that the action should not
have been case, but should have been tire spass on
lands. To this the PLAINTIFFS Counsel cited 2 Rev.
Stat p $50 sec. A. where provision is made that
person shall be Prejndiced by the ancient terms and
forms OF pleading, if that the matter fully appear
in the process, or declaration, or other pleading
and cited the Rev. stat p. 236, "A, where the ac
tion Of trespass for mesne profits IS abolishcd and
again cited Rev Stat 4J6, sec. is, where trespass
on the may be brought instead OF for
injury done to the person, personal property oi
rights Of another. The defendant also insisted tina
the plaintiff should have been nonsuited at the trial
because he had not proved the breaking, entering
nor shown any title
The plaintiff answered that he had proved tina
|, Abraham lie Foy and Elder Lc Foy were brothers
that the father owned the prcmises that the mothe
after his death lived there and paid the taxes thu
premises, and this was title by descent the hes
title could have. lie also proved that Abra
/, ham lie Foy IN the language Of the witness, "denie,
the right Of Edcr lie Foy TO the property, and Abra
ham lie Foy claimed the whole Of the property hi
. own;'' and produced judgment record, whereof
the plaintiff had recovered possession against bra
ham and further insisted that Abraham, being tn
landlord to the tenant in ejectment, was bound by
. recovery against the tenant and cited II Wheato
' Reps. go; also Wild Backstoncs Reps. l077-
q wilson's Reps. lis; and farther insisted that th
: form of the action Observation-Disclosures Reps
5si-Cowper's Reps. 2i3; and to support this actio
cited Adams on ejectment 335-Chambers' Landlor
. and Tenant sI2, SI3
: The defendants counsel insisted that he was emit
!. tied 10 a new trial The plaintiff insisted that IN
obiec ton TO the form Of the action should have bee
c made bv demurrer or in arrest Of judgment, but
no reason for granting new trial. and cited Gr'
ham on New Trials, and the New York Digest Tit,
IN New Trials.
The defendants counsel said the action was an a,