Braden v. Berry
New York Supreme Court
Error from the Greene common pleas. Berry sued Braden a keeper of a gate on a turnpike road in the county of Greene, to recover a penalty of ten dollars for demanding toll from him in passing the gate kept by the defendant, when the same was ordered by an inspector of the road to be thrown open, on the ground of the road being out of repair. See provisions of the statute on the subject, 1 R. S. 588,2d ed. § 39, &c. The suit was brought before a justice of the peace.
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Error from the Greene common pleas. Berry sued Braden a keeper of a gate on a turnpike road in the county of Greene, to recover a penalty of ten dollars for demanding toll from him in passing the gate kept by the defendant, when the same was ordered by an inspector of the road to be thrown open, on the ground of the road being out of repair. See provisions of the statute on the subject, 1 R. S. 588,2d ed. § 39, &c. The suit was brought before a justice of the peace. The plaintiff proved the demand and payment of toll on the 21st of January, 1837, and produced in evidence a notice and order,…
1Opinion of the Court
By the Court, Co wen, J.
The only question is whether the notice required by the statute was sufficient to subject the defendant to the penalty ; and we think it was not.
The notice should have specified that part of the road which the inspector had examined and held to be out of repair. If the whole and every part of the road had been found to be so, that should have been stated in so many words. The notice was equivocal. The statute intended to secure to the collector the opportunity of repairing the road intermediate the notice and final order, and shewing such repair for cause. All the…
2Cited by2 opinions
- McClure v. MelendySupreme Court of New Hampshire · 1860
- Shiloh Turnpike Co. v. BatesSupreme Court of New Jersey · 1910