Conklin v. Elting

2 Johns. 410

• Court: New York Supreme Court
• Decided: November 15, 1807
• Status: Published

Opinion

Thompson, J.

delivered the opinion of the court. From the testimony stated in the return to the certiorari, I am inclined to think, that the plaintiff below was a person entitled to pass through the gate toll free, but that his case is not within the 13th section of the act; and so as to subject the toll-gather to the penalty. This section appears to me to relate to the delay or hindrance of persons who are bound to pay toll. They are denominated travellers or passengers, and the penalty is for unreasonably delaying them. This would seem to imply a right to delay them a reasonable time, and until the toll was paid. Rut if the section applies to persons entitled to an exemption from toll, any hindrance whatever would be illegal. As to them the road is free, and on the same footing with any common public highway, and the remedy for any hindrance-or interruption in the free use of the road, must be the same as if it had happened on any other public highway. We are of opinion, therefore, that the plaintiff below has mistaken his remedy, and that the judgment must be reversed.

Judgment reversed.