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Dodge v. Colby

Court of Appeals of the State of New York
Feb 28, 1888
108 N.Y. 445 (N.Y. 1888)


Argued January 27, 1888

Decided February 28, 1888

John E. Parsons for appellant. Stephen B. Brague for respondent.

The complaint contained three counts and the defendant demurred to it and to each separate cause of action stated therein upon three grounds, viz.:

First. That the court has not jurisdiction of the subject of the action.

Second. That the complaint does not state facts sufficient to constitute a cause of action.

Third. That causes of action have been improperly united, viz., a cause of action for a slander of title, being a transitory action, with one for trespass on lands without the state, of which the court has no jurisdiction.

The Special Term overruled the demurrer, and on appeal to the General Term that court reversed the order of the Special Term.

The General Term held that the first and second counts of the complaint each stated a cause of action arising out of trespass upon lands in the State of Georgia, and that in respect to such actions the courts of this state had no jurisdiction, and therefore, sustained the demurrer to those counts.

We concur in the conclusions reached by that court in respect to this portion of the complaint. The counts referred to, we think, under the liberal system established by the Code, each clearly stated a good cause of action in trespass quare clausum fregit and entitled the plaintiff, if sustained, to recover for all damages accruing to him from the acts described therein. It constitutes no answer to this proposition that the plaintiff might have recovered, upon the facts stated, some of the damages alleged to have been sustained by him, in an action of trover, so long as the gravamen of the charge was the unlawful intrusion upon his real estate. The cutting and tapping of trees constituted the real basis of the damages claimed. While the counts referred to, each allege the value of the timber and turpentine claimed to have been carried away from the premises of the plaintiff, this is merely incidental to the trespass alleged, and the complaint concludes with a general prayer for judgment which would cover the damages arising from the alleged unlawful entry upon the plaintiff's lands and the trespasses committed thereon, as well as the incidental damages arising from the conversion of his property.

The doctrine that the courts of this state have no jurisdiction of actions for trespass upon lands situated in other states is too well-settled to admit of discussion or dispute. ( American Union Tel. Co. v. Middleton, 80 N.Y. 408; Cragin v. Lovell, 88 id. 258.) The claim urged by the plaintiff that if not permitted to maintain this action he is without remedy for a most serious injury, is quite groundless, and affords no reason for the assumption of a jurisdiction by this court which it does not possess. The plaintiff would seem to have the same remedy for the trespasses alleged that all other parties have for similar injuries. His lands cannot be intruded upon without the presence in the state, of the wrong-doer, and no reason is suggested why he could not seek his remedy against the actual wrong-doers in the courts having jurisdiction. His remedy is ample and it is no excuse for assuming a jurisdiction which we do not have, that the plaintiff desires a remedy against a particular person, rather than one against the real perpetrators of the injury, who were exposed to prosecution in the place where the wrong was committed.

We are, however, unable to agree with the General Term, in the conclusion reached by it, that the third count does not state a good cause of action. We are inclined to think that this result was arrived at through inadvertence in failing to observe the allegation in the count that the statements alleged to be slanderous "were false and defamatory, and were made and caused to be circulated and published by the defendant and his agents maliciously and with the intent to injure the said plaintiff and his title to the said lands." The demurrer concedes the truth of this allegation and renders it improper for the court to refer to the statements so alleged to be false, defamatory and malicious, as the foundation of a claim that they were made in good faith and in the exercise of a lawful right on the part of the defendant to assert his title to the lands referred to.

The statement in the complaint that the defendant alleged that his title had been investigated by four able legal gentlemen, who unanimously concurred in pronouncing the plaintiff's title bad, was precisely one of the statements which the complaint alleged to have been false, defamatory and malicious, and the truth of which characterization was admitted by the demurrer. It was error, therefore, in the court below to refer to this statement as proof of the propriety of the defendant's claim to be the owner of the lands, or as justifying, in any degree, the alleged slanderous statements.

We are of the opinion that this count of the complaint substantially complied with the requirements of the rule relating to the statement of a cause of action for slander upon title. The General Term, we think, also erred in sustaining the demurrer to the third count, upon the ground that there was an improper joinder of causes of action. It is quite true that, under section 484 of the Code of Civil Procedure, causes of action for slander cannot properly be joined with actions for injuries to real property; but this was not the ground of objection stated in the demurrer. The ground there specified was that a cause of action of a transitory nature, of which the court had jurisdiction, had been united with one for trespasses upon land in another state, of which the court had no jurisdiction. This is not one of the grounds of demurrer authorized by the Code. It is a proper ground of demurrer that the court has not jurisdiction of any specified cause of action, but this does not authorize a demurrer, upon the ground that such causes of action are united with one of which it has jurisdiction.

The first and second counts of the complaint must be held bad, upon the ground that the court had not jurisdiction of the subject of the action; but no sufficient ground of demurrer has been presented to the third count, and it must, therefore, be held good. The Code requires the grounds of demurrer to be specifically stated, and when that is not done it may safely be disregarded. (Code of Civ. Pro. § 490.)

Our conclusion, therefore, is that the judgment of the General Term should be affirmed, except in so far as it relates to the third count, and as to that it should be reversed, and that of the Special Term affirmed, without costs to either party upon this appeal.

All concur.

Judgment accordingly.

Summaries of

Dodge v. Colby

Court of Appeals of the State of New York
Feb 28, 1888
108 N.Y. 445 (N.Y. 1888)
Case details for

Dodge v. Colby

Case Details

Full title:GEORGE E. DODGE, Appellant, v . JOHN L. COLBY, Respondent

Court:Court of Appeals of the State of New York

Date published: Feb 28, 1888


108 N.Y. 445 (N.Y. 1888)
13 N.Y. St. Rptr. 848
15 N.E. 703

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