Wheaton v. Collins

The opinion of the court was delivered by

Parker, J.

The first point made here is the same as that first discussed by the Supreme Court. As. to this point it may be worth while to add that the complaint will support thei judgment even if the relation of landlord and tenant did not exist. The first count alleges that defendant held possession of the premises without right, and that plaintiff demands the fair rental value thereof as mesne profits. It is true that the words “use and occupation” occur, which may make this informally drawn complaint faulty for duplicity; but that objection was not urged and it will stand as a demand of damages for continuing trespass, which are the fair rental value. 38 Cyc. 1128.

The ease of Mason v. Haurand, 79 N. J. L. 375, is not applicable.

The second point argued in appellant’s brief relates to something claimed to have been decided by the Supreme Court in its opinion, and which we do not find raised on the trial of the ease or in the grounds of appeal in the Supreme Court. Of course, error can he predicated only on some ruling in the trial court, and none is mentioned under this point of the brief.

The judgment will be affirmed.

For affirmance — The Chancellor, Garrison; Swayze, Parker, Bergen, Kalisch, White, Heppenheimer, Williams, Taylor, JJ. 10.

For reversal — None.