Willoughby v. Carleton

9 Johns. 136

• Court: New York Supreme Court
• Decided: May 15, 1812
• Status: Published

Opinion

Per Curiam.

There is no well founded objection to the judgment below. 1. Whatever objection there might have been to the second adjournment, on the strict construction of the act, the granting it was reasonable and just, under the circumstances of the case,

* and the objection was waived by the appearance of the defendant, afterwards, on the day of adjournment and going to trial on the merits. This cured the irregularity, according to the ' case of Dunham v. Heyden. (7 Johns. Rep. 381.)

2. The justice was correct in ruling that a decision of the fence viewers, as to each party’s proportion of the fence, was not requisite, if no dispute existed as to the proportions; nor were the costs and expenses of repairing the fence to be settled, in this case, by the fence viewers.

3. The admission of parol proof of the written notice to the defendant to repair, was also correct. Tower v. Wilson, (3 Caines’ Rep. 174.)

4. The defendant was not entitled to prove his deed by the grantee, without accounting for the absence of the subscribing witnesses. The grantee had the strongest interest in the question to be put; and it showed the danger of departing from the general rule, as to the proof of deeds.

Judgment affirmed.

See Powers v. Lockwood. ante, p. 153.