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That on and after the 25th day of October, A. D. 1828, he was lawfully possessed of the premises and land hereinafter described, situated in the town of Greenbush, county of Rensselaer, claiming to hold the said premises in fee; and being so possessed, the defendant afterwards, to wit, on or about the 1st day of January, 1840, entered into such premises, and that he unlawfully withholds from said plaintiff the possession thereof, to the plaintiff's damage of $100.

The premises, so entered upon by the defendant, and unlawfully withheld from the plaintiff, are a part of the land and premises mentioned in a certain conveyance, &c., [describing the premises.]

Wherefore the plaintiff demands judgment against the defendant, that the said defendant do forthwith deliver up to the plaintiff the said premises so withheld, and, also, pay the plaintiff the damages he has sustained as aforesaid, by reason of the withholding of said premises, in the sum of $100, and his costs of action.

S. & V. S.,

Plaintiff's Attorneys.

relative to the action of ejectment, apply to complaints under the Code. (See, also, Pleadings, 297, 298.) So, also, in St. John v. Price (22 Barb., 362), at General Term in the seventh district, it is held that the general provisions of the Revised Statutes relating to actions concerning real estate, where no specific inconsistent provision is made in the Code on the same subject, remain in force, and are to be applied and adapted to actions now brought. But in that case it was decided that the provision authorizing the declaration to contain several counts, and that several parties might be named jointly in one count and separately in others, was repealed, as being plainly inconsistent with the provisions of the Code respecting parties to the action, the form of action, &c.

See post, No. 86, a complaint in which a claim to recover from a railroad company possession of a part of a highway, exclusively appropriated to the purposes of the railroad, is joined with a cause of action for damages, actual and consequential, for the same entry.

(13.) MISCELLANEOUS CASES AGAINST RAILROAD COMPANIES."

(No. 74.)

Against a railroad company, for damages occasioned by its

neglect to erect and maintain suitable fences and cattleguards.

SUPREME COURT-RENSSELAER COUNTY.

George Sims

agt. The Troy and Boston Railroad Company.

The plaintiff complains of the defendants, the said The Troy and Boston Railroad Company, a corporation duly organized under the laws of the State of New York:

That said defendants' railroad commences in the city of Troy, in said county, and runs from thence, northerly, through the town of Lansingburgh and other towns of said county.

That on or about the month of August, 1852, this plaintiff's horse was lawfully pasturing upon lands in the said city of Troy, lying alongside of and adjoining said railroad; and that at the time of the injury, hereinafter mentioned, the said defendants had not erected or maintained, as they were bound to do,2 on the sides of said railroad, adjoining and opposite the said land whereon the plaintiff's said horse was pasturing, as aforesaid, fences, as required by law, nor had they constructed or maintained cattle-guards at any or either of the road crossings along their said road (there being several of the same), suitable or sufficient to prevent cattle or animals from getting on to said railroad, as required by law; and that, by reason of the said defendants' neglect so to erect and maintain such fences and cattle-guards, as aforesaid, the said horse, while so lawfully pasturing on said land, as aforesaid, and on or about said month of August, 1852, escaped from said land on to said railroad, and was then and there run upon and over by the defendants' locomotive engine, under the direction of said defendants' agents and servants, and by cars drawn by said engine, and was thereby killed; and that said horse, at the time he was killed, as aforesaid, was worth the sum of $150.

1 For precedents of complaints to enforce various obligations against railroad corporations, see Part I., No. 6, p. 26; Part II., No. 12, p. 78; No. 13, p. 81; No. 25, p. 135; also Part III., No. 20, p. 395; No. 64, p. 481; No. 68, p. 488. 2 This is unnecessary. ( See ante p. 473, and note. )

Wherefore the plaintiff demands judgment against said defendants for that amount, with interest thereon from the 1st day of September, 1852, with costs, &c.

PIERSON, BEACH & SMITH,

Plaintiff's Attorneys.

( No. 75.)

Against a railroad company for wrong fully ejecting a pas

senger from its cars.

SUPREME COURT - RENSSELAER COUNTY.

Philip Cummins

agt. The Troy and Boston Railroad Company.

The plaintiff complains of the above defendants, the Troy and Boston Railroad Company, and says:

That the said defendants are a corporation, duly organized under the laws of the State of New York.

That the said defendants are engaged as common carriers of passengers by railroad, for hire, from the city of Troy to Eagle Bridge, in the town of Hoosick, in said county of Rensselaer, a distance of about twenty-three miles, and from the said Eagle Bridge to the said city of Troy, upon their cars, drawn by locomotive engines, and have been such common carriers from the 1st day of February, 1852, hitherto.

That on or about the 21st day of April, 1852, this plaintiff entered into one of the passenger cars of the said defendants, at Eagle Bridge aforesaid, for the purpose of being transferred and carried by said defendants in said car from the said Eagle Bridge to the said city of Troy, and that he so entered with the knowledge and assent of said defendants, for the purpose aforesaid, and then and there became and was a passenger on board the said cars of said defendants; and after the said defendants had carried this plaintiff as such passenger about the distance of one mile in said car upon their said road, for the purpose of taking him to Troy aforesaid, the said defendants, without any lawful cause, with great force and violence, and at a place other than a usual stopping place for said defendants, and not near any dwelling-house, ejected and turned him, this plaintiff, out of and from said car, and then and there declined and refused to carry or further transport him on their said road, and greatly injured this plaintiff in his person, and that by means of the premises this plaintiff has sustained damages to the amount of $1,000.

"This complaint contained a further and separate statement of a cause of action, for the same transaction, which I have omitted, inasmuch as such duplication of the same cause of action has been repeatedly held to be improper. (See Pleadings, 351, 352, and cases there cited.)

Wherefore the plaintiff demands judgment against the defendants for the same, with costs. PIERSON, BEACH & SMITH,

Plaintiff's Attorneys.

This second statement alleged the purchase of a ticket by the plaintiff some days previous, and the implied agreement (alleged in the complaint as an express agreement) of the defendants to carry the plaintiff, and failure to do so that day by reason of the defendants' road being out of repair ; that the plaintiff afterwards got on the cars and attempted to be carried through on the same ticket; and refusing to pay the fare when demanded, the conductor ejected him, as above stated. It is to be observed, in regard to this, that it is entirely unnecessary, in a pleading, thus to anticipate the defendants' answer. The complaint will be sufficient if it show a prima facie cause of action, and the plainliff is not bound to negative a possible defence. (See Pleadings, 329, and cases there cited.) Indeed, it has been held that he cannot thus anticipate a defence, as, for example, the statute of limitations, and set up in his complaint matters to avoid it. (Butler v. Mason, 5 Abbott, 40.)

Judged by these rules, the complaint in the text would be entirely sufficient, and nothing more could properly be added, except, perhaps, that the plaintiff had actually purchased a ticket, or paid the compensation required for traveling the distance alleged by him in the complaint.

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