Outwater v. Moore
| Decision Date | 14 January 1891 |
| Citation | 124 N.Y. 66,26 N.E. 329 |
| Parties | OUTWATER v. MOORE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from a judgment of the general term of the supreme court in the second judicial department, modifying, and affirming as modified, a judgment entered upon the decision of the court at special term, and also modifying, and affirming as modified, an order denying a motion to conform the judgment to the findings, and for other relief. The plaintiff alleged in his complaint that on the 7th day of June, 1883, he owned certain premises in the town of Red Hook, Dutchess county, and that the defendant, on or about that day, entered thereupon, took down a fence that stood thereon, and removed the same; that he also ‘then and there erected another fence, and said new fence was not erected upon the true division line between the land of plaintiff and defendant, nor upon the line of the old fence, but upon the land of the plaintiff, without any right or authority in the defendant so to do, and dug holes, trod down grass, and otherwise injured plaintiff's premises, to his great damage, [amounting to] twenty-five dollars.’ As a second cause of action the plaintiff alleged that in 1882 the defendant erected a dam across a creek that flowed through said premises upon the site of an old dam, ‘and where he had a right to erect it to a certain height,’ but that he ‘wrongfully raised the same two feet higher than the old dam, or than he had a right to raise or build the same,’ and thereby caused the water to overflow and injure the said lands. The prayer for relief was that the defendant be compelled to lower his dam to the proper level, return the fence to its proper line, and pay the plaintiff the sum of $125 as damages. The answer was a general denial. The action was tried before the court without a jury, and the justice presiding found the facts in favor of the defendant upon the first issue, and in favor of the plaintiff upon the second, and, as a conclusion of law, ‘that the dam erected across said creek or stream be lowered fourteen inches throughout its whole length by defendant on or before May 15, 1884, and that plaintiff recover from the defendant the sum of six cents damages, and his costs and disbursements in this action.’ The judgment subsequently entered recited none of the facts found except such as were favorable to the plaintiff, and it contained no adjudication upon the issue relating to the division fence. Thereupon the defendant, upon due notice, moved at special term for relief in various forms, and among other things ‘for an order that the judgment herein be made to follow and conform to the findings herein as to...
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School District No. 1 v. Howard
...the architect. The court erred in refusing to render special findings of fact and of law. Parrott Brothers v. City, 167 P. 807; Outwater v. Moore, 26 N.E. 329. against defendant's sureties, appellant contends that upon the death of Fred A. Roedel his executors were substituted as defendants......
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