Braden v. Berry

20 Wend. 55

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

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 notice said was,<c complaint has been made that your turnpike is out of repair, and I have examined and found the complaint to be just.” A case of actual and total dilapidation is an extraordinary one, and calls for language stating the fact in terms. In common parlance it would not be intended by the phrase used in the notice. People hardly ever mean when they say a road is out of repair or in bad repair, or the like, that every rod of it is entirely so. To make it thus total, the words must be forced beyond their ordinary import. The notice should have been certain at least to a common intent. The provisions of the statute all look to the imposition of a penalty, and must therefore be strictly pursued.

The notice was defective, and the judgment is therefore reversed.