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Granger agt. City of Syracuse.

his lot. He has a barn and carriage-house on his lot. The proposed improvement takes six feet of his lot, being also two-thirds of his carriageway and destroys it, and cuts off a portion about five feet of his barn. The barn must be entirely removed, and the premises left without one, or it must be moved on to that portion of the premises now used as a garden and for the cultivation of fruit.

I think an injury to this class of property, and of the character here suffered, where its value as ornamental

property is interfered with, and its daily use for the comfort and satisfaction of the owner are materially affected, properly falls within that jurisdiction in which a court of equity exercises its preventive powers.

Judgment of general term should be reversed and a new trial ordered, costs to abide event.

Judgment affirmed.

Searles agt. Cronk.

RENSSELAER COUNTY COURT.

SEARLES agt. CRONK.

A justice's judgment, rendered on the verdict of a jury, for the defendant, in an

action of trespass, will be reversed by the county court on appeal, where it appears that the plaintiff would be entitled to nominal damages only.

October Term, 1869.
APPEAL from justice's judgment.
The action was trespass quare clausum fregit.

The complaint charged the defendant with having entered the plaintiff's close and taking therefrom a cow, then and there being in the plaintiff's possession.

The answer denied the allegations of the complaint.

The trial was by jury and resulted in a verdict of no cause of action.

The justice entered on the verdict a judgment against the plaintiff with costs.

The plaintiff appealed to this court from the judgment, alleging it to be without and against law and evidence.

The evidence clearly showed the entry into the plaintiff's close and the driving away therefrom of the cow, then in the plaintiff's possession, by the defendant, as alleged in the complaint.

It was also shown by the evidence that the cow—which is claimed by the defendant to have belonged to him and to have been of a wild and unruly nature and disposition, aroused and excited, perhaps, by being separated by him from her newly-born calf—had broken out of the lot of a person other than the plaintiff, in which she was pastured for the defendant, and ran in and upon the highway along

Searles agt. Cronk.

or past the close of the plaintiff, into which she broke and in which she was found trespassing by his wife and son, who by his direction placed her in the barn yard of and upon his close, where she was so found by them, and in which she afterwards remained until her rescue and removal therefrom by the defendant, about a couple of hours after her capture by them.

It further appeared from the evidence that the perambulation of the cow extended through the grass meadow and oat fields of the plaintiff, from and over which she had to be pursued and driven into his barn yard, from which she succeeded in emerging in her endeavor to escape from his close and custody, which was frustrated and prevented only by the vigilance and perseverance of his wife and son, by whom a considerable portion of the Lord's day was consumed in so doing

From the nature of the instructions given by the plaintiff to his wife upon the subject, it is not improbable that this was not the first incursion of the cow into his close, and that it was his intention, should another occur, to seek redress therefor by proceedings under the statute authorizing a distress of cattle doing damage. This, the rescue of the cow by the defendant, which occurred before further steps could be taken by the plaintiff thereunder, prevented his doing, and the amount of the damages as well as the extent of the injury sustained by him by reason of the premises, were consequently not further shown or ascertained, but they were not necessarily either trifling or nominal merely.

The jury before whom the cause was tried was demanded by the defendant, and were taken by the constable who appeared for him before the justice, by whom the venire was issued and delivered to him by the defendant's direction.

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Searles agt. Cronk.

ROMEYN, County Judge.—The defendant concedes, what cannot be successfully controverted, that the verdict of the jury, and the judgment of the justice founded upon it, in this cause, are without and against law and evidence, and mast be reversed unless, as he claims, this court is at liberty to affirm the same upon the assumption that the plaintiff was entitled to but nominal damages therein. This, however, I do not feel at liberiy to do: 1st. Because I do not think I have any such discretion; and 2d. Because I do not think this is any

such case. 1. This is a proceeding in error from a judgment of a subordinate tribunal of which this court has appellate cognizance only, and is not an application for a new trial of an action in the same court, of which it has original jurisdiction and about which it has a discretionary power; the distinction between which is recognized by the supreme court in Cady agt. Fairchild, (18 J. R., 129,) where it is said, “there is ground for a distinction between granting a new trial and reversing a judgment on return to a certiorari ;” and was acted upon by the same court in Herrick agt. Stover, (5 Wend., 585, 589,) where it was held that the judgment of a subordinate tribunal will be reversed if erroneous, although the suit be vexatious and the plaintiff entitled to but nominal damages, as it was also in Dixon agt. Clow, (24 Wend., 188.) where the same principle is applied and the question settled.

In a court like this, where much of the litigation consists of cases in which the amount involved is so diminutive as scarcely to relieve it from the operation of the rule, de minimis, while its consequences may be so serious to the litigant as to transfer his property to his adversary, consign himself to a prison, and commit his family to the poorhouse What would be left to the large class thus circumstanced, if the principle contended for by the defendant were applied to them, but the relinquishment of a legal claim, a compliance with an unjust demand, or submission to a tedious imprison

Searles agt. Cronk.

ment for the unsuccessful prosecution of the one or resistance to the other.

That it is inapplicable to this court at least, is further apparent from the provision of the Code; the three hundred and fifty-first section of which repeals all statutes in force at the time of its adoption, providing for the review of judgments in civil cases rendered by courts of justices of the peace, and regulating the practice in relation to such review and directs that thereafter, the only mode of reviewing such judgments shall be by appeal as prescribed by chapter 5, of which it is a part; and the 366th section thereof, which requires this court upon the hearing of an appeal, such as this is, to give judgment according to the justice of the case, without regard to technical errors or defects not affecting the merits, and in doing so to affirm or reverse the judgment of the court below, which the 368th section thereof enacts, shall be with costs to be awarded by the appellate court to the prevailing party, and thus deprives, if it does not divest, this court of all or any option or discretion in the matter, save in regard to its granting or withholding a new trial of the cause in the justice's court, or the county court in the cases and for the causes authorized in and by the 366th section of the Code. (Chapin agt. Churchill, 12 How., 367; Cook agt. Swift, 18 Id., 454).

2. The prosecution was necessitated by the defendant's invasion of the plaintiff's domain. The action was proper for the redress of the injury for which it was brought to obtain reparation by the plaintiff, and is one to which the principle invoked by the defendant, has been deemed inapplicable. In Ashby agt. White, (reported in 1 Salk., 19 and 2 L. Raym., 955,) it is said by Lord Holt: “A man shall have an action against another for riding over his ground though it do him no damage, for it is an invasion of his property, and the other has no right to come there. So if a man gives another a cuff on the ear though it cost him nothing, no, not so much as a little diachylon, yet he shall

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