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carelessly and improperly kept said pelts in their cars, on their road, for a long time, until they became rotten and unmerchantable, and did not deliver them to the plaintiff or his agent, as they promised, but suffered them, through their carelessness and default, to become spoiled and worthless, and would not deliver them for a long time to the plaintiff, and until they were entirely valueless, to plaintiff's damage, of $250.

Therefore plaintiff demands compensation for the aforesaid injuries, and asks judgment against the defendants in the sum of $1,000, and costs.

E. G. LAPHAM,

Plaintiff's Attorney.

(No. 86.)

Against a railroad company, for ejectment, to recover part

of a public street taken and exclusively appropriated to the purposes of the railroad, joined with a cause of action for damages for the same entry and acts of defendant."

SUPREME COURT- RENSSELAER COUNTY.

James Wager, Volney Richmond and Har

vey Smith

agt, The Troy Union Railroad Company.

The abovenamed plaintiffs, residents of and doing business at the city of Troy under the name and firm of

Since the cases of Smith v. Halleck ( 8 How. Pr. R., 73) and Hulce v. Thompson ( 9 How. Pr. R., 113 ), it is believed such a joinder of causes of action is not proper. ( See, Pleadings, 186, 187.) Wager, Richmond & Smith, complain of the defendant, a railroad corporation, duly incorporated pursuant to the statutes and laws of this state, and allege the following facts, constituting their cause of action :

That said plaintiffs are the owners, in fee simple, of certain property and real estate in the city of Troy, in said county, situate on the easterly side of Sixth-street, between Albany and State streets, in said city, and generally bounded and described as follows: [Describing the premises, which embrace one-half of the street opposite the premises ], with the right of free access and egress to and from the same to and through the said street. And the plaintiffs aver, that they were possessed of the whole and every part of the above premises, subject only to the public easement of a common street or highway in that part thereof which is used as a public street, on the 1st day of February, 1854, and, being so possessed, the defendant afterwards, to wit, on the same day, entered upon a portion of said premises, to wit, that part which is used as a public street or highway, lying between and bounded by the centre line of said Sixth-street, on one side thereof, and the front line of the buildings erected on each of the two separate parcels or premises above described, on the other. And said defendant is now in possession thereof, and, by artificial embankments and other works, has encroached and destroyed the use of the same as a public street or

The objection, however, can be taken only by demurrer, and is waived by answer. (Code, § 144.) The complaint, in this case, was prepared before the decision of these cases, and the defendant put in its defence by answer, thus paming the objection.

As to the joinder of a legal and equitable cause of action, see Precedent No. 16, Part II., ante, p. 96; two equitable causes of action, No. 56, Part II., anle, p. 252; the joinder of several causes of action arising on contract, Part III., No. 44, ante, p. 436; joinder of two causes of action arising ex delicto, No. 60, ante, p. 468, and No. 85, ante, p. 523.

highway, and has exclusively appropriated the same to its own use, and claims the sole and exclusive right to use the same, or a considerable portion thereof, as a railway for their engines, cars and other movable vehicles, and wrongfully withholds the possession thereof from the plaintiffs. And the plaintiffs claim to be the owners of the fee of the said premises so entered upon and unlawfully withheld from them, subject only to the public easement in the same as a street or highway, for the ordinary uses and purposes of travel, and entitled to the possession of the same, subject only to such easement.

Second. And for a second and further cause of action the plaintiffs allege, that on the said 1st day of February, 1854, and on divers other days and times between that day and the commencement of this action, the defendant, by its agents, superintendents, contractors and employees, wrongfully entered upon said premises of the plaintiffs, as aforesaid, and did then and there dig and excavate the soil of said premises, and tear up the pavements, and make and cause to be made embankments, and lay down rails upon said premises, and on divers occasions, since, has been, and now is, committing other acts of trespass and injury to said premises, by running their cars and engines over said premises, and by entering upon and using the same daily, for their own exclusive and private purposes, to the great damage of the said plaintiffs, sustained in the several acts of trespass, committed as aforesaid, on said premises, in the depreciation of their buildings and real estate, and in the injuries occasioned thereby to their business.

Wherefore the plaintiffs demand judgment against the defendant, that said defendant deliver up to them, subject only to the public easement, the possession of the said premises, so unlawfully withheld from them by the defendant; and that said defendant also pay to said plaintiffs the damages 1 they have sustained, as well by reason of the withholding of said premises, as of the several acts of trespass committed by said defendant, as aforesaid, in the sum of $10,000, besides their costs.

S. &. V. S.,

Plaintiffs' Attorneys.

1 If the plaintiffs were in doubt as to what relief they were entitled to, whether for judgment, in ejectment, or only for damages, the foregoing complaint, I have no doubt, might have been properly drawn with a double aspect, setting forth in a single cause of action the entry upon the street, the digging and embankments, and destruction of the street, and its appropriation by defendant to the entire exclusion of the plaintiffs and the public; in other words, alleging a state of facts that would sustain a judgment either for the delivery of possession, or for damages, and conclude by asking relief in the alternative, that defendant be adjudged to deliver up the possession, &c., or that he pay damages, &c. (See Pleadings, 296; see also a complaint wi double aspect, ante, No. 78, Part II., p. 328, 330, and note.)

67

PART IV.

ANSWERS,

(1.) DENIALS – GENERAL AND SPECIFIC.

(No. 1.)

Absolute general denial by one of two defendants (the en

dorser of a note), answering separately.?

SUPREME COURT.

A, B.

agt. C. D., impleaded with E. F. and G. H.

The defendant, C. D., separately answering the plain

1" To Complaint No. 4, Part III. (ante, p. 359). The answer being by the indorser of the note, he must regularly answer in this positive form, and cannot answer (as in the next precedent) by say. ing that “he has no knowledge or information sufficient to form a belief ;" for the reason given in Fales v. Hicks (12 How., 153, and cases there cited), that the fact of the indorsement and the transfer to the plaintiff is presumed to be within the defendant's personal knowledge, and if he undertake to deny such a fact at all, he must do so positively. (See Pleadings, 440 – 447.) He might, however, deny the making and protest and notice, on information and belief, or knowledge thereof sufficient to form a belief, and then deny the endorsement positively. As to whether an answer denying facts presumptively within the defendant's knowledge is frivolous, or whether it is merely sham, to be shown to the court on motion to strike out the answer, see Leach D. Boynton, (3 Abbott, 1, and cases there cited; also, Plead., 596-605).

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