Conkey v. Kenyon

Appeal—Objections not Raised Below. A judgment for plaintiff, in an action for trespass by defendant’s cattle, will not be disturbed, on appeal, on the ground that it does not affirmatively appear that the alleged trespass was committed in the state, or that plaintiff owned, or was in possession of, the locus in quo, or of the property injured, as such objections are technical, and cannot be taken advantage of on appeal, unless they are specifically raised in the court below.

Appeal from St. Lawrence county court. Trespass quare clausum fregit by Almyron Conkey against Charles Kenyon. From a judgment for plaintiff, defendant appealed. Judgment affirmed. The opinion of County Judge Kellogg is as follows: “It is contended the complaint and evidence do not affirmatively show the alleged trespass was committed in this state; that it does not affirmatively appear that plaintiff owned or was in possession of the farm on which the trespass was committed, or of the property injured, and that, therefore, the motion for a nonsuit was erroneously denied; that it does not appear affirmatively that the injured crops examined by some of the witnesses, and as to which they testified, were the crops in question. Had these objections been specifically raised in the court below, the omission, if any, might have been supplied; not having been so raised," they should not now be considered as a ground for reversal. Burns v. City of Schenectady, 24 Hun, 10; Mallory v. Insurance Co., 47 N. Y. 52; Binsse v. Wood, 37 N. Y. 532. Here the evidenee is sufficient to sustain the finding that the defendant’s cattle broke and' entered plaintiff’s close, and injured his crops, and that he thereby suffered’ the damage awarded. After carefully considering the.case, no error appears, calling for a reversal. Judgment affirmed.”