Oakley v. Horn
New York Supreme Court
Error from the Delaware C. P. Van Horn sued Oakley in a justice’s court in trespass, for levying upon and selling a saddle for a school tax. Oakley justified as collector of school district No. 10, [Roxbury,] under a warrant regular on its face. The plaintiff claimed to live in the adjoining .district No. 11, the line between which and No. 10 divided his farm.
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Error from the Delaware C. P. Van Horn sued Oakley in a justice’s court in trespass, for levying upon and selling a saddle for a school tax. Oakley justified as collector of school district No. 10, [Roxbury,] under a warrant regular on its face. The plaintiff claimed to live in the adjoining .district No. 11, the line between which and No. 10 divided his farm. The proof was strong that he resided in No. 11, but there was proof that he resided in No. 10. His residence was within a very few rods of the line. The cause was tried by a jury, who found for the defendant. The common pleas of…
1Opinion of the Court
By the Court,
Cowen, J.
The statute, 2 R. S. 175, § 110, 2d ed. requires that previous to Receiving the verdict, “ the justice shall call the plaintiff. If he be absent, and no one appear for him, the verdict shall not be received.” The statute is merely directory in respect to the ceremony of calling the plaintiff. The object is to ascertain whether he.be present; .and it is enough that he be actually present, and not objecting.. Non constat that he was desirous to have a nonsuit entered. If otherwise, he might have said so, or have actually withdrawn, as in Platt v. Storer, 5 Johns. R. 346.
As…
2Cases cited3 opinions
- Birdsall v. PhillipsNew York Supreme Court · 1837
- Baldwin v. CalkinsNew York Supreme Court · 1833
- Stryker v. BergenNew York Supreme Court · 1836
3Cited by13 opinions
- Porter v. RummeryMassachusetts Supreme Judicial Court · 1813
- Prosser v. SecorNew York Supreme Court · 1849
- City of Buffalo v. New York, Lake Erie & Western RailroadNew York Court of Appeals · 1897
- Smith v. HillNew York Supreme Court · 1856
- Rogers v. AckermanNew York Supreme Court · 1856
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