People ex rel. Lentz v. Gray

2 N.Y.S. 251, 56 N.Y. Sup. Ct. 465, 18 N.Y. St. Rep. 17, 49 Hun 465, 1888 N.Y. Misc. LEXIS 127

• Court: New York Supreme Court
• Decided: September 24, 1888
• Status: Published

Opinion

Learned, P. J.

Chapter 455, Laws 1847, and amendments, show the manner of assessing damages in these cases. After the jury has been drawn, then, by section 6, they are to “hear the parties, and such witnesses as may be offered by the parties, and sworn by said justice before them.” Although nothing is said expressly about notice to the parties, such notice is necessary on sound and settled principles. Without due notice, the proceedings cannot stand. This is the decision in Stephens v. Tallman, 36 Barb. 222, and we think that decision correct. The respondents ask for an order authorizing the calling of a new jury. We do not feel certain that we have that power. Whether the proceedings have entirely failed or not we will not now determine. It is enough for the present that we reverse the proceedings, with $50 costs and debts against the highway commissioner.

Landon and Ingalls, JJ., concur.