Opinion
March Term, 1866
T.R. Westbrook, for the appellant.
Erastus Cooke, for the respondent.
In the view which I take of this case, the only questions to be considered are, whether the court erred in overruling the several objections and motions made by the plaintiff founded upon the form of the defendant's answer, and in receiving the record of the former suit in evidence, and holding it was conclusive in favor of the right of way claimed by the defendant.
The plaintiff objected, in the first place, to the defendant's showing under his answer a right of way, or a way, on the premises, because the facts giving a way, or a right of way, were not set out in the answer. The defendant had pleaded separately a public highway, and a right of way in himself, and the objection was to his giving evidence under either plea. If either plea was sufficient, the objection, being general, was not tenable. The answer setting up a public highway was sufficient under the rules of pleading existing before the Code, as well as since. In the case of Aspindall v. Brown (3 Term, 266), it was held that, in pleading a public highway, it is sufficient to state concisely that it is a public highway, without showing how or when it became so. The reason assigned in the case above cited is, that if the rule were otherwise, great inconveniences would follow, for strangers passing along the streets of London could not ascertain when they first became highways. This mode of pleading a public highway is in harmony with the Code, as it is a concise statement and issuable fact. In respect to pleading a private way, the rule is different. The party claiming a private way is supposed to be cognizant of the origin of the right, and the extent of it, and he must therefore aver his title, and the termini of the way. (1 Arch. Nisi Prius, 457.) But the plaintiff did not invoke the benefit of that rule, as he did not object specifically to the introduction of evidence under that branch of the answer which alleged a private way.
Again, if the plaintiff had taken that specific objection, on the trial, it would not then have been available to him. If the answer was defective, it was only so because it alleged the private way in too general terms. It was not sufficiently definite and certain in that respect. The remedy of the plaintiff for that defect was by motion, by section 160 of the Code, to compel the defendant to make the answer more definite and certain. By omitting that remedy, he was precluded from objecting to the evidence on the trial. (3 Kern., 538; 15 N.Y., 425; 18 id., 119.)
The requests to compel the defendant to elect upon what ground he claimed a way over the premises, whether by prescription, by grant, from necessity, or by reason of the same having been laid out as such, and to elect whether the road was claimed as a private or public road, were addressed to the discretion of the court. They related exclusively to the manner of conducting the trial, and the rulings of the judge thereon cannot be reviewed.
The objections to the reception of the record of the former suit in evidence, were properly overruled. It was objected to, not on the ground that it was not pleaded, but, first, as immaterial and irrelevant, and secondly, that the record did not show that the question of the right of way was necessarily adjudicated. But the defendant claimed to be able to show, aliunde, that such issue was litigated and necessarily passed upon by the verdict; and if this was regarded as an offer by him to show such fact, as it properly might have been, there was no force in the objections. It was clearly competent for the defendant to make the proof offered (8 Wend., 1; 4 Comst., 71); and, in passing upon the objections, the court was bound to assume that the offer would be made good.
The only remaining question, therefore, is, whether the defendant succeeded in showing that the identical question of the right of way involved in the present action was necessarily and directly litigated and determined in the former suit. If he did, the court was correct in ruling that such adjudication was conclusive in favor of the right of way as claimed by the defendant; but, if he failed in that respect, the ruling was erroneous.
The record showed that Hays, the present defendant, sued Kerr, the present plaintiff, in the Supreme Court, and complained against him for an assault and battery. Kerr, by his answer, did not deny the assault and battery, but justified the force used, first as in self-defense against an assault by Hays, and, secondly, as in defense of his close adjoining the premises of Hays, and of a certain fence on said close which Hays attempted to break down. Hays replied: 1. Denying that he assaulted Kerr; 2. Denying that Kerr was possessed of the close mentioned in the answer, or that Hays attempted to break into said close or broke down the fence; 3. Setting up a right of way through the close. It will be observed that several distinct issues besides the right of way were presented by the pleadings, upon either of which the verdict for the plaintiff might have been rendered without passing upon the others. The jury might have found that the defendant beat the plaintiff, but not in defense of himself or his close; or if in defense of either, that he used more force than was necessary. While, therefore, it was apparent from the record that the question of a right of way was within the issues, and might have been litigated, it did not appear thereby that such issue was in fact litigated and determined.
It is also to be observed, that the issue of a right of way is presented by the reply in the former suit, and it is said by the counsel for the appellant that, as under the Code of 1852, a reply was not permissible except to an answer setting up new matter constituting a counterclaim, therefore the reply in the former suit was nugatory, and presented no issue. But it does not appear when the former suit was commenced. The record shows that the cause was tried on the 27th of April, 1853, and the complaint alleges that the assault and battery took place the 26th of October, 1851. Under the Code of 1851, a plaintiff could reply to any answer containing new matter constituting a defense or a set-off. (Laws, 1851; Code, p. 54, § 153.) If the reply was served before the amendment of 1852 took effect, it was regular, and that such was the case is to be presumed, I apprehend, the contrary not appearing. In other words, if any presumption is to be indulged, it will be that which favors the regularity of the pleading. Besides, if the plaintiff in that suit could not reply, he might prove on the trial any matter by way of reply to the answer without pleading it.
It is also urged that if the reply was a proper pleading, and is to be regarded as presenting an issue, it was insufficient for that purpose, as it was indefinite and uncertain. But the defendant went to trial under it, without objecting to its form, either before or at the time of the trial, and he cannot now be heard to say that it presented no issue. Of course, it is incumbent on the party setting up the former suit to show that the right of way then litigated is identical with the one now alleged.
After the record was introduced, the defendant gave parol evidence which tended strongly to show that the question of the right of way was fully gone into on both sides, and was submitted to the jury. That evidence, it will be observed, was not objected to; the witnesses who gave it were not cross-examined in respect to it; it was not contradicted; the plaintiff gave no testimony upon the point to which it referred; and there is no evidence whatever that either of the other issues was litigated or submitted to the jury. The evidence tended to show that the right of way set up in the former suit was identical with that alleged in this action.
This state of the testimony authorized the finding, not only that the right of way set up in this action was litigated and submitted to the jury in the former suit, but that it was the only issue litigated and submitted, and, consequently, that it was necessarily and directly passed upon by their verdict. The case is similar, in all respects, so far as the question under consideration is concerned, to that of Wood v. Jackson (8 Wend., 1, 46), and upon the authority of that case the ruling below should be sustained. In that case, as in this, neither the verdict nor the judgment showed that the point, in respect to which the record was offered in evidence, must have been directly and necessarily passed upon by the verdict; but in that case there was an offer to establish that fact by parol proof that such point was the only question submitted to the jury. The rejection of that offer was held to be error. Aided by the parol testimony, the record was conclusive evidence of the defendant's right of way, and on that ground his defense was perfect.
The views above expressed render it unnecessary to examine any other questions in the case, and lead to the conclusion that the judgment should be affirmed.
Judgment affirmed.