Mayer v. Mayor of New York

New York Supreme Court

Mayer v. Mayor of New York

67 Barb. 323, 1875 N.Y. App. Div. LEXIS 18

DecidedMay 3, 1875

StatusPublished

This text of 67 Barb. 323 (Mayer v. Mayor of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mayer v. Mayor of New York, 67 Barb. 323, 1875 N.Y. App. Div. LEXIS 18 (N.Y. Super. Ct. 1875).

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Opinion

By the Court, Davis, P. J.

The defendants demurred to the complaint in this action oh the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained at Special Term, and from the order of that court the plaintiff appealed to the General Term. This court, at the October term, 1874, reversed the order below, and held the demurrer bad, with leave to defendants to answer over. The opinion of the court, per Brady, J., (3 Hun, 306 ;4 Thomp. & C., 488,) covers all the material questions presented by this. We adopt and repeat the opinion as a sound exposition of the law under the existing adjudications of the Court of Appeals. On the trial the plaintiff put in evidence an order of the Special Term of this court vacating, on the 21st of December, 1871, the assessment on lot ward number 27, on which the plaintiff paid the assessment on the 22d of December of the same year. This was objected to because, the roll or record of the proceedings in which such order was made was not produced. The court overruled the objection, and received the order in evidence, to which the appellant duly excepted. This exception was probably well taken, but the order was wholly immaterial, as the fact which it [325]*325was received to prove was not essential to the right to recover.

[First Department, General Term at New York, May 3, 1875.

According to the ruling of this court already cited, it could make no difference with the plaintiff’s right to recover, whether the assessment on lot 27 had been vacated or not. Besides, the court put the case to the jury upon a question in no sense involving or affected by the question whether the assessment had been vacated or not. The jury cannot be legally said to have been affected by the improper and illegal evidence.

There seems to be no reason for disturbing the judgment, and it should be affirmed,

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By the Court, Davis, P. J.

The defendants demurred to the complaint in this action oh the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained at Special Term, and from the order of that court the plaintiff appealed to the General Term. This court, at the October term, 1874, reversed the order below, and held the demurrer bad, with leave to defendants to answer over. The opinion of the court, per Brady, J., (3 Hun, 306 ;4 Thomp. & C., 488,) covers all the material questions presented by this. We adopt and repeat the opinion as a sound exposition of the law under the existing adjudications of the Court of Appeals. On the trial the plaintiff put in evidence an order of the Special Term of this court vacating, on the 21st of December, 1871, the assessment on lot ward number 27, on which the plaintiff paid the assessment on the 22d of December of the same year. This was objected to because, the roll or record of the proceedings in which such order was made was not produced. The court overruled the objection, and received the order in evidence, to which the appellant duly excepted. This exception was probably well taken, but the order was wholly immaterial, as the fact which it [325]*325was received to prove was not essential to the right to recover.

[First Department, General Term at New York, May 3, 1875.

According to the ruling of this court already cited, it could make no difference with the plaintiff’s right to recover, whether the assessment on lot 27 had been vacated or not. Besides, the court put the case to the jury upon a question in no sense involving or affected by the question whether the assessment had been vacated or not. The jury cannot be legally said to have been affected by the improper and illegal evidence.

There seems to be no reason for disturbing the judgment, and it should be affirmed,

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Bluebook (online)

67 Barb. 323, 1875 N.Y. App. Div. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayer-v-mayor-of-new-york-nysupct-1875.

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