Legal Opinion

Van Wormer v. Mayor of Albany

New York Supreme Court

Decided May 15, 1836PublishedCited by 43 opinions

This was an action of trespass, tried at the Albany circuit, before the Hon. James Vanderpoel, one of the circuit judges, and was brought for the pulling down, by an agent of the corporation, of a barn and sheds of the plaintiff; his damages being estimated at from $1000 to $2600. The defendants justified under a by-law of the corporation, reciting that certain grounds had been adjudged by the board of health a nuisance, dangerous to the health and lives of the inhabitants…

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This was an action of trespass, tried at the Albany circuit, before the Hon. James Vanderpoel, one of the circuit judges, and was brought for the pulling down, by an agent of the corporation, of a barn and sheds of the plaintiff; his damages being estimated at from $1000 to $2600. The defendants justified under a by-law of the corporation, reciting that certain grounds had been adjudged by the board of health a nuisance, dangerous to the health and lives of the inhabitants of the city, and that it was necessary they should be dug down to abate the nuisance, and therefore enacting that such…

1Opinion of the Court

By the Court,

Savage, Ch. J.

The first question is whether the mayor was a competent witness. There are but two grounds upon which an objection can be made to his competency, to wit, that he is a party to the suit, and that he is interested. It is an answer to the first ground, that he is sued in his corporate, and not in his individual capacity. Peake’s Cases, 153,4. 3 East, 13. 1 Phil. Ev. 58. The mayor in this case was not personally liable to costs. It is an answer to the ground of interest, that the statute has said that “No person shall be deemed an incompetent witness or juror by reason…

2Cited by43 opinions

  1. Osterhoudt v. . RigneyNew York Court of Appeals · 1885
  2. People Ex Rel. Lieberman v. . VandecarrNew York Court of Appeals · 1903
  3. People Ex Rel. Hatzel v. . HallNew York Court of Appeals · 1880
  4. Metropolitan Board of Health v. . HeisterNew York Court of Appeals · 1868
  5. People Ex Rel. McCabe v. . MatthiesNew York Court of Appeals · 1904

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