Cochrane v. Smadbeck

99 N.Y.S. 5

Opinion

SCOTT, P. J.

I entertain no doubt that in common fairness the defendants .should pay the plaintiff the amount for which this action is brought, but I can see no legal principle upon which the judgment can be sustained. The only evidence to sustain plaintiff’s claim it the report of the commissioners after the appeal, and the order confirming that report. These documents are not admissible in evidence to conclude the defendants, because the latter were not made parties to the appeal or to the subsequent proceedings, and had no opportunity to be heard before the commissioners upon the question of the redistribution of the award. Upon the plainest principles, the defendants are not to be concluded by a final order resulting from a proceeding of which they had no notice, and in which they had no opportunity to participate. Their action should have been against their attorney for negligence in not making defendants parties to the appeal.

The judgment must be reversed, and a new trial granted, with costs to appellants to abide the event. All concur.