Smith v. Frost

5 Hill & Den. 431

• Court: New York Supreme Court
• Decided: July 15, 1843
• Status: Published

Opinion

By the Court, Cowen, J.

The common pleas clearly erred in considering the proof of a levy deficient. There was abundant evidence of that to warrant the finding of the jury.

To the objection that a judgment must be shown, the justice answered by opening his docket at the proper place and averring that he had entered a judgment. Neither party insisted on going into particulars; and the question is, whether the judgment was sufficiently proved. The docket should, before the revised statutes, have been proved as the general docket of the justice, with his handwriting; or his official certificate required by the then statute should have been produced. Less, however, will now do. (2 R. S. 196, 2d ed. § 245.) By the true construction of the section referred to, the docket of a justice is evidence per se, when the cause is before himself, just as would be an original record in a court to which it belongs. The vertificate of the justice is necessary only when a transcript is relied on.

The judgment of the common pleas should be reversed, and that of the justice affirmed.

Ordered accordingly.