Borries v. Horton
New York Supreme Court
Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justices before whom the action was tried. This was an action of trespass against defendants, for damages for breaking down a fence upon plaintiff’s farm.
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Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justices before whom the action was tried. This was an action of trespass against defendants, for damages for breaking down a fence upon plaintiff’s farm. They set up by their answer that at the times in the complaint mentioned they were commissioners of highways of and for the town of Oyster Bay, and that the said fence stood upon one of the highways in said town, and that they acted in the premises according to law. Plaintiff…
1Opinion of the Court
BarNard, P. J.:
The court, erred in holding that the plaintiff must deny an encroachment on oath upon a highway, or that he is finally bound by the order of the commissioners. The statute does not make such order final and conclusive. (2 R. S. [5th ed.], 407, § 141.) If the order was regularly made and correctly recited an obstruction which in fact existed, the order would presumptively evidence those facts. But plaintiff would not be bound to admit the jurisdictional facts upon which that order depended; even if he had denied the obstruction, and the jury had found against him, would he have…
2Cases cited3 opinions
- Doughty v. BrillNew York Supreme Court · 1862
- Doughty v. BrillNew York Court of Appeals · 1867
- People ex rel. Commissioners of Highways of Cortlandville v. Judges of Cortland CountyNew York Supreme Court · 1840