Port Jervis v. Barrett Bridge Co.

12 N.Y. St. Rep. 875

Opinion

Barnard, P. J.

A careful review of the case fails to show cause for re-argument. The action was for a penalty for obstructing a street. The street had not been formally opened but had been mapped out by an owner who sold lots upon it for a portion of its length and the sole question is one of fact, whether it had been used by the public and occupied by the village. Upon both points the evidence was conflicting, and as the obstruction was admitted, if there was a street, there is no reason for an appellate court to interfere with the finding of the jury upon the point. The general merit of the case is against the defendant. It is not doubted but that the street was created as to those who bought upon it and as a matter of private covenant, and on that account it should not been have closed on consideration of their rights. The village mapped it, removed obstructions from it, and the public used it. A bad place in it at the creek, and even negligence in the village in putting a bridge across it there, would not justify the defendant in shutting the street up and taking possession of it.

The motion should be denied, with ten dollars costs.

Pratt, J., concurs.