Larney v. Mooney

By the Court: The fifth subdivision of the complaint is that “the defendant did then and there wrongfully and unlawfully enter upon said premises and close up said several windows.” The denial is only that the defendant “wrongfully and unlawfully, after the execution of said lease, entered upon the said premises, and closed up said several windows,” etc.

The seventh subdivision of the complaint is, “for that the said defendant did wrongfully and unlawfully enter upon said hotel and premises, and upon the south wall of said building did there and then build an additional wall, ” etc. The denial is only as follows: “Defendant denies that on the 20th day of May, 1873, or at any other time, that he committed a breach of the covenants, agreements or conditions of said lease, or any of them, by wrongfully or unlawfully entering upon the south wall of said building.”

The entry of the defendant upon the demised premises is thus seen to be admitted in the pleadings, and in this view the question of damages is the only one open to inquiry. The judgment was for three hundred and ten dollars damages, and there is nothing in the record to show that for the trespass admitted in pleading it should have been for a less sum. Irrespective, therefore, of the question principally argued at bar, we think that the judgment rendered below cannot, in this condition of the record, be disturbed by us.

Judgment affirmed.

Crockett, J., concurring: I concur in the judgment, on the ground that the defendant is estopped by the covenants in the lease from obstructing the windows in the hotel.