Hopkins v. Cabrey
New York Supreme Court
Error from the Dutchess C. P. Hopkins sued Cabrey in a justice’s court on the 4th of May, 1838, for money had and received to the plaintiff’s use, viz. the surplus money remaining in the defendant’s hands as a school district collector, after retaining sufficient of the proceeds of a. sale of the plaintiff’s property to satisfy a school tax.
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Error from the Dutchess C. P. Hopkins sued Cabrey in a justice’s court on the 4th of May, 1838, for money had and received to the plaintiff’s use, viz. the surplus money remaining in the defendant’s hands as a school district collector, after retaining sufficient of the proceeds of a. sale of the plaintiff’s property to satisfy a school tax. After the plaintiff had declared, and before plea, in order to make out a case for judgment of discontinuance, the defendant made an affidavit that the justice before whom the suit was prosecuted was a material witness for his defence ; which being held…
1Opinion of the Court
By the Court,
Cowen, J.
The affidavit was clearly sufficient within the statute. Statutes of 1838, ch. 243, § 1, p. 232. It may not have been so in respect to the former suit, but was as to the tender and admission. It is no answer that a tender was not pleaded. The omission may have been for the very reason that the testimony of the magistrate was gone.
Again: the justice had no right to interpose his private knowledge or recollection as an answer to the affidavit. Doing'so would enable a justice to defeat the application, and at the same time to put the point beyond the reach of review, even…
2Cited by2 opinions
- Poor v. . GuilfordNew York Court of Appeals · 1851
- Poor v. GuilfordNew York Court of Appeals · 1851