Decisions in Court of Appeals.

brances; the remainder to S. chargeable with the mortgage; who subsequently sold to F. and N. a small portion of his purchase. On a bill of foreclosure filed against the mortgagor and the purchasers, held, that the premises held by S. should be first sold, to pay the mortgage debt and costs. Secondly, the costs of V., and thirdly, the costs of F. and N. in defending. But that S. was not chargeable personally with the costs of V. In case of a deficiency, F. and N's portion be sold first; next V's. Reported, 2 Barb. S. C. R. 13.

JAMES STEWART, plaintiff in error, agt. MYNARD DEYOE, detendant in error. Judgment affirmed. JUDIAH ELLSWORTH for plaintiff in error; A. BOCKES for defendant in error.

This was an action of trespass committed by defendant's (Stewart) cattle upon the plaintiff's (Deyoe) land. It appeared that the cattle passed over a partition fence, which had been divided for each party to erect and maintain; and that both divisions were out of repair; and it did not appear from the evidence which part the cattle passed over. Held, that the plaintiff was entitled to recover. The defendant, to excuse himself, was bound to show that the cattle passed over that portion of the fence which the plaintiff was required to maintain. Reported, 4 Denio, 101.

JOSIAH L. Dow, plaintiff in error, agt. JONATHAN KENT, defendant in error. Judgment affirmed. JOHN VAN BUREN for plaintiff in error; M. SCHOONMAKER for defendant in error

This was an action of trespass commenced in a Justice's Court by Dow against Kent, for alleged injuries to the plaintiff's posts, fences, sidewalk and ground, adjoining the public highway; in plowing and scraping away the ground, &c.; in the village of Milton, Ulster county. The defendant pleaded the general issue, and gave notice (in substance) that he acted as overseer of the highway, and that whatever was done in the premises was done by virtue of his office, and was what the law required to be done.

On the trial, the plaintiff, was allowed, after objection, to give evidence that the work done by defendant, had not been done in the manner best adapted to the object in view; that turnpiking

Decisions in Court of Appeals.

the road in front of plaintiff's land was not the best way to improve it; and that the sluice made was not necessary. Also, that defendant's fence was nearer the road than the church fence on the south, adjoining.

Judgment was rendered for the plaintiff before the justice (jury trial). On certiorari the Ulster Common Pleas affirmed the judgment. On writ of error to the Supreme Court, the judgment of the Common Pleas was reversed. BEARDSLEY, J. said "that in order to recover, the plaintiff was bound to prove that such trespass had been committed by the defendant. But this could not be done by showing that turnpiking the road was not the best way of improving it, or that the defendant's fence was out of position. Those were matters quite foreign to the case in hand. They were calculated to carry the jury away from the question before them, and were on no principle admissible as evidence in the case. On this ground, without going further, the judgment should be reversed." Not reported.

GEORGE BURR, plaintiff in error, agt. JOHN R. WOOD, defendant in error. Judgment affirmed. M. T. REYNOLDS for plaintiff in error; M. SCHOONMAKER for defendant in error.

This was an action of trover brought by Wood in a Justice's Court against Burr for levying upon and taking a two horse harness. It was proved that the harness belonged to the plaintiff and was loaned to one Smith; and Smith left it in the care of one Lefever; and while hanging in a shop belonging to Lefever was levied upon by Burr, by virtue of an execution against Smith. Burr did not take the harness out of the shop, but took it from the place where it hung and put it into a box in the shop with other property he had levied upon. It appeared from the testimony that the harness, shortly after the levy, was removed from the shop; and some testimony to show that it was taken to the garret of Lefever's house. Smith and Lefever resided in the same house. Smith was a witness on the trial, and refused to answer the question, "Has any one taken the harness out of the shop?" as having a tendency to criminate himself. After the testimony was closed and the summing up had commenced by defendant's counsel, de

Decisions in Court of Appeals.

fendant offered in evidence an execution against Smith in favor of one Dubois, to show that previously a set of harness of Smith's had been levied upon and the levy still retained, as evidence to justify the defendant Burr in making the levy in this case. The justice refused the evidence on the ground that it was offered too late.

Judgment was rendered for the plaintiff for $10 damages and $2.40 costs. The Ulster Common Pleas, on certiorari, reversed the judgment of the justice; and the Supreme Court (January term, 1846), on writ of error, reversed the judgment of the Common Pleas and affirmed that of the justice. "PER CURIAM. The defendant levied upon the harness, took it down from where it hung, and put it in a box with other property on which he had levied. What has since become of the property does not appear. The dominion which the defendant exercised over the property was enough to enable the plaintiff to maintain an action.

Whether the justice should receive further evidence after the testimony had been closed, and the summing up had been commenced, was a question addressed to his discretion. And besides, if the execution against Smith was received, it made out no justification for taking the plaintiff's property.

The witness Smith, was not bound to criminate himself. All that remains of the case were questions of fact. The judgment of the justice should not have been reversed." Not reported.

GERRIT I. HOUGHTALING, plaintiff in error, agt. GEORGE W. KELDERHOUSE, defendant in error. Judgment affirmed. HENRY G. WHEATON for plaintiff in error; R. W. PECKHAM for defendant in error.

This was a case which decided that in an action for slander, it is not competent for the plaintiff to introduce evidence of his good character, in reply to evidence introduced by the defendant, tending to prove the truth of the charge. Reported, 1 Comstock, 530.

5 How. 81-CRITICISED, 19 How. 29.

Prouty agt. Prouty.

ONTARIO COUNTY COURT.

PROUTY, respondent, agt. PROUTY, appellant.

Landlord and Tenant.

Tenants from year to year may be removed by "summary proceedings," under the landlord and tenant acts of 1830 and 1849, notwithstanding the omission from those acts of the phrase "from year to year"—which was employed in the statute of 1820.

Such a tenant is included in the term "Tenant at Will" as used in the statutes of '30 and '49, and may be summarily removed upon one month's notice to quit terminating with the year.

The affidavit, on which the summons issues, should state that the tenant is holding over "without the permission of his landlord." If it do not, and the objection is taken at the return of the summons and overruled, it is error, for which the proceedings will be reversed.

The reduction of the term for which parol leases may be made, from three years to one, had no legal effect upon estates from year to year."

WORDEN & CHEESEBRO, for Respondent.

J. N. WHITING and A. T. KNOX, for Appellant.

MARK H. SIBLEY, County Judge. This case is before the court on appeal under the act of 1849 (page 291-2, of the laws of that year), from the judgment of Justice FOLGER, rendered, on verdict, against the appellant, as a tenant holding over after the expiration of his term without the permission of the respondent, his landlord.

On the return day of the summons the appellant appeared before the justice and objected to the sufficiency of the affidavit on which it was issued, on the following grounds:

1st. That it does not bring the tenant within any of the subdivisions of § 28 of the Landlord and Tenant act.

2d. That it presents the case of a tenancy "from year to year," and does not show that the tenant has had six months notice to quit.

3d. That it does not show that the tenant was holding over without the permission of his landlord.

Prouty agt. Prouty.

These objections were severally overruled by the justice.

Upon the 2d objection he held that the appellant was a tenant from year to year; that as such tenant he would have been entitled to six months notice to quit before ejectment; but, that no notice to quit was necessary before summary proceedings for removal under our Landlord and Tenant acts; and that the tenant was liable to be removed under the 1st subdivision of the 28th section, as a tenant holding over after the expiration of his term.

After these decisions were announced, the tenant put in a counter affidavit, and the case went to a jury upon proofs, under the charge of the court, which was in accordance with these preliminary rulings.

This tenant took possession on the 1st day of May 1835, under a parol demise, for an indefinite period, at an annual rent, payable in quarter-yearly instalments, and continued to hold, by himself, his sub-tenant and assigns, to the 1st day of May 1850, when, he being again in possession, the landlord demanded a surrender and on the following day instituted these proceedings.

The relation of the appellant under such a demise and continued occupation was clearly that of a tenant from year to year, as defined by all writers who have treated of that particular estate. As such tenant he was entitled, by the well settled principles of the common law, to six months notice before his estate could be terminated. For the appellant it is insisted, that such an estate is not within the terms employed in the Revised Statutes or the statute of 49: or, if within those acts, that six months notice to quit was necessary to terminate it; and that until the ending of such notice the tenant could not be "holding over after the expiration of his term."

The questions to be decided are,

1st. Is a tenant from year to year subject to summary removal under our Landlord and Tenant acts?

2d. If so is he entitled to any and what notice to quit before such proceedings can be instituted?

3d. What is the effect of omitting from the affidavit on which the summons is granted, the averment that the tenant is at the