Saunders v. Townsend

33 N.Y. Sup. Ct. 308

• Court: New York Supreme Court
• Decided: January 15, 1882
• Status: Published

Opinion

Rumsey, J.:

The action was brought by plaintiff, as commissioner of highways of the town of Lawrence, to recover of the defendant the statutory penalty for obstructing a highway in that town.

But one question is raised here by the appellant which we can consider. He insists that it was not shown that the place where the obstructions were placed was a public highway.

The alleged highway led from a public highway to a mill pond. The evidence of the plaintiff tended to show that it had been used as a highway for over twenty years, and that it had been worked ’ under the direction of the overseer of highways within six years before the suit.

Upon both of these points the evidence was contradictory and the justice found for the plaintiff.

As no bond was offered when the plea of title was interposed, that question did not arise in the case, and the only defense available to the defendant under the evidence given is the general denial, and under that he could controvert the user as a highway and the fact of the obstruction. (Little v Denn, 34 N. Y., 452, 461.) The plaintiff’s evidence was sufficient to establish its use as a highway for the purposes of this action. (Little v. Denn, supra.) It was a question of fact for the. justice (McCarthy v. L. S. and M. S. Ry. Co., 76 N. Y., 592), and we see no reason to interfere with his decision.

That the bous in quo wás a oul de sao did not prevent its being a highway. (People v. Kingman, 24 N. Y., 559, and cases cited.)

The error in the rejection of evidence insisted on by appellant cannot be considered. It is not specified in the notice of appeal. The Code of Procedure under which this appeal is taken required the gro.unds upon which the appeal is founded to be stated in the notice of appeal (sec. 353), and a judgment could not be reversed for an error not stated. (Avery v. Woodbeck, 5 Lans., 498.)

No other grounds for reversal than those considered above are urged here, and they are not sufficient to reverse the judgment. Judgment of County Court affirmed, with costs.

Osborn, J., concurred.

Learned, P. J.:

“Without saying that the objection to evidence could not be raised on this appeal, I think it could not be sustained, and concur.”

Judgment affirmed, with costs.