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land was directed to be sold to pay the sum of six hundred and four dollars and thirty cents, with interest, from the 13th day of May, in the year 1943, that being the amount at that time, due and unpaid on the said mortgage and bond, besides the costs of said proceedings to foreclose, and of the sale of the said lot of land under said decree, and the said plaintiff avers that the said sum of six hundred and four dollars and thirty cents, was, on the day and year last aforesaid, then and there justly due to him and unpaid on the said mortgage and bond, and that the cost of said proceeding to foreclose amounted to a large sum of money, to wit, the sum of two hundred and fiftyone dollars and forty-two cents, and that the said lot of land was an inadequate security for the payment of the said sum so due, with interest and costs aforesaid.
And whereas, afterwards to wit, on the 4th day of September, in the year 1844, the said plaintiff caused the said lot of land to be advertised for sale under the said decree so obtained as aforesaid, to satisfy the amount so due on said mortgage and bond, on the 17th day of October, then next ensuing. And the said plaintiff avers that Almerin Bailey and William E. Bailey, the mortgagors in the said mortgage, were then and still are insolvent, and then and there had and owned no other estate or property than the said lot of land, out of which the said plaintiff could obtain payment or satisfaction of the said sum so due to him, or any part thereof but the said defendants well knowing the premises above mentioned, but intending to injure and aggrieve the plaintif, and to prevent him from having payment and satisfaction of the amount due upon
said mortgage, and the interest and the costs of foreclosure and sale, and by a sale of the said lot of land, and to lessen the value of the said lot of land, and to render it of less value than the amount charged thereon, did after the obtaining of the said decree, and after the said lot of land was advertised for sale as aforesaid, and before the sale thereof, to wit, on on the 10th day of September, in the year 1844, wrong fully and fraudulently take down and remove the rail fences on the said lot of land, and did take and carry away and convert to their own use a large number of rails and stakes, which had been laid up into fences on the said lot of land, to wit, five thousand rails and three thousand stakes, and did then and there wrongfully and fraudulently cut down and remove a large quantity of timber and trees, other than pine timber, then and there growing and being on the said lot of land, to wit, five hundred chestnut trees, five hundred oak trees, five hundred maple trees, five hundred hickory trees, and five hundred other trees not being pine timber, the said rails, stakes and trees being a part and parcel of the said mortgaged premises, the said defendants well knowing that the said plaintiff had obtained the said decree, and that the said lot of land was advertised for sale under the said decree, and that the said lot of land was an inadequate security for the moneys-so due, together with interest and costs as aforesaid, By reason whereof the plaintiff has been deprived of obtaining satisfaction and payment of the amount so due and unpaid to him on his said mortgage and bond, and the said land was sold for a less sum than it would otherwise have been sold for, to wit, less by the sum of six hundred dollars, and the said plaintiff has failed in obtaining payment and satisfaction of a large part of the sum due on his said mortgage and bond, to wit, the sum of six hundred dollars. By reason whereof the said plaintiff has
" It is not necessary to allege that the act is either wrongful or fraudulent. The taking and removal, under the circumstancs previously and subsequently stated in the declaration, constitute the cause of action.
sustained damage to six hundred dollars, and therefore he brings suit, &c.
( No. 3.)
Form of a declaration in case, in an action brought by
executors for injuries done to the premises of the testator, in grading a street which caused a part of the premises to fall in.
The parts italicised are such as may be less formally stated or omitted under the Code.
KINGS COUNTY, 85.—Elizabeth H. Radcliff, James Boorman and Peter De Witt, executrix and executors of the last will and testament of Peter W. Radcliff, deceased, plaintiffs in this suit, by A. H. Dana, their attorney, complain of the Mayor and Common Council of the city of Brooklyn, who were duly summoned to answer the said plain
1 This is the ad damnum clause of the declaration. Its place is now supplied by the demand for relief, namely in cases like the above judgment for a certain sum specifying it.
2 A second count or cause of action is set forth in the above declaration, substantially the same, varying from it mainly by omitting the allegation that the plaintiffs advertised the premises for sale after decree, but evidently intended to cover the same cause of action. This was allowable under the old system. The plaintiff's declaration might contain various counts, all intended to cover the same cause of action, so that if his proof on the trial failed to sustain one, he might rely on another. This is no longer allowable. The plaintiff can set forth but a single statement of fact to a single cause of action. (Plead., 351, 352.)
This case is reported under the title of Radcliff v. Mayor, &c., of Brooklyn. (4 Com., 195.) The Court of Appeals held that the action could not be sustained. The ground of defence will be found set forth in the special pleas which are given post No. 8.
tiffs in a plea of trespass on the case. For that whereas, the said Peter W. Radcliff, in his lifetime and at the time of the committing of the grievances hereinafter mentioned, was lawfully possessed of certain lands, under cultivation and enclosed by a fenee, and upon which were situated a dwelling-house and certain fixtures and improvements appertaining thereto, or used upon the said premises for the support of shrubbery and otherwise in gardening, viz, a privy, a summer-house, grape vine, fences, and the like, to wit, in the city of Brooklyn and county of Kings aforesaid, which said premises were adjacent to the East river, but a considerable distance above the same, and were sustained on that side by a natural bank, having a gradual descent from said premises to said river.
And the said defendants well knowing the same, but contriving and intending to deprive him of the use and advantage of his said premises and the appurtenances, to wit, on the eleventh day of May, in the year one thousand eight hundred and thirty-eight, and at various times thereafter, during the lifetime of the said Peter W. Radcliff, wrongfully and injuriously did dig away, or cause or procure to be dug away, the said bank or natural support of the premises of the said Peter W. Radcliff, and did undermine the said premises, whereby a part of the said garden or enclosed ground, to wit, two thousand square feet of superficial measure, together with the shrubbery, fixtures and improvements, and the fence along the said bank fell in and became and were wholly lost to the said Peter W. Radcliff, and he was thereby, also, during his natural life, necessarily put to great expense in endeavoring to restore the said premises, and the said plaintiffs, his executors, have, since the death of the said Peter W. Radcliff, been at further expense in filling up the ground and building a wall to sustain the said premises, to wit, the sum of ten thousand dollars.
And also, for that whereas, the said Peter W. Radcliff, in his life, became legally possessed of the premises and appurtenances situate, as in the first count mentioned, to wit, on the said eleventh day of May, in the year one thousand eight hundred and thirty-eight, and at various times subsequent thereto, in thc year aforesaid, and in the lifetime of the said Peter W. Radcliff the said defendants intending and contriving wrongfully and injuriously to deprive him of the use and advantage thereof, did undertake to make a street or road along the said premises, and in so doing, so negligently, incautiously and improvidently managed the same, that for the want of due care and precaution by themselves and their agents in that behalf, the said premises of the said Peter W. Radcliff, were undermined, and a part of the same, to wit, two thousand square feet of the surface fell in, together with the improvements and fixtures thereon, and the fence along the side so undermined, and the same were wholly lost to the said Peter W. Radcliff, and he was, during his lifetime and the said plaintiffs, his executors, since his death, have been obliged to pay a large sum of money for restoring said premises and sustaining the same, to wit, ten thousand dollars. By reason of all which several matters, the said plaintiffs say, that the said Peter W. Radcliff, deceased, was injured, and the said plaintiffs, as executors as aforesaid. have sustained damages to fifteen thousand dollars, and therefore they bring suit, &c.?
1 This is the second count in the declaration in which it will be observed that the same cause of action is set forth in a different man
The first count alleges the act to have been simply a wrongful act; and the second, that the defendant undertaking to make a street, did it negligently, &c. This mode of duplicating a cause of action in the same complaint, is no longer allowable. (See ante note to page 18.)
2 The foregoing declaration set forth two other counts, slightly varied from the foregoing, though similar in substance, which I have Omitted.