Armstrong v. SmithArmstrong v. Smith
- Reporters:
- ,
- Before:
- Balcom
Thе plaintiffs’ counsel has made the point that the defendant’s notice of appeal to the county court was invalid, because a United States revenue stamp, of fifty cents, was not put upon the оne served on the justice, or upon one of those served on the plaintiffs.
A fifty cent stamp was used аnd canceled upon the notice kept by the defendant’s attorneys, and the government of the Unitеd States has not been defrauded. But whether the appeal to the county court was invalid or irregular because the stamp was not put upon one of the notices served, instead of the one kеpt by the defendant’s attorneys, is a question not properly before this court. To have brought it here the *123■plaintiffs should have appealed from the order of the county court, denying‘their motion to dismiss the dеfendant’s appeal to that cpurt.
It is well settled, that notwithstanding the defendant, in a suit before a justicе of the peace, fails to appear at the trial, the plaintiff must establish his cause of aсtion by legal evidence. (Perkins v. Stebbins, 29 Barb. 523, and cases there cited. Also see Clark v. Van Vrancken, 20 id. 278.) The farthest that this court has gone is to hold that it “ will not reverse the judgment of a justiсe of the peace, in a case where no one appeared for the defendant, for the error of the justice in permitting an improper answer to be given by a witness, if there is enough testimоny besides, free from all objection, to sustain the judgment. (Buck v. Waterbury, 13 Barb.116.)
The county court affirmed the judgment of the justice, uрon the authority, of Nellis v. McCarn, (35 Barb. 115.) But the decision in that case is in conflict with two decisions of this court, made at genеral terms in this district, in Stickney v. Bwarthout, (MS. opinion, July Term, 1859,) and Cook v. Disbrow, (MS. opinion, May, 1860.) And I am also constrained to say the decision in Nellis v. McCarn is in conflict with the decision of the court of appeals, in Morehouse v. Mathews, (2 Comst. 514,) and also, either directly or indirectly, in conflict with the following cases, namely: Giles v. O’Toole, (4 Barb. 261.) Simons v. Monier, (29 id. 419.) , Rodgers v. Fletcher, (13 Abb. R. 299.) Norman v. Wells, (17 Wend. 136.) Paige v. Hazard, (5 Hill, 603.) Fish v. Dodge, (4 Benio, 311.) Duff v. Lyon, (1 E. D. Smith, 536.) Cook v. Brockway, (21 Barb. 331.) Lincoln v. The Saratoga and Schenectady R. R. Co. (23 Wend. 425.) Merritt v. Seaman, (2 Seld. 168.) The Rochester and Syracuse R. R. Co. v. Budlong, (6 How. Pr. Rep. 467.) Benkard v. Babcock, (27 id. 391; S. C. 421.) Harger v. Edmonds, (4 Barb. 256.) Dolittle v. Eddy, (7 id. 74.)
The county judge, in this case, and the learned justice, whо *124delivered the opinion in Nellis v. McCarn, relied very much, for their conclusions, upon the decision of the court of appeals in Dewitt v. Barly, (17 N. Z. Hep. 340.) But that dеcision is not in conflict with the decision of the same court in Morehouse v. Mathews, (supra.) All that Dewitt v. Barly holds is, that upon an. issue in regard to the mental imbecility of a grantor, the opinions of unprofessional witnesses, founded upon personal obsеrvation of his appearance and conduct, may be given in evidence ; and that such-witnesses must stаte, as far as they are able, the facts and reasons upon which their conclusions are founded, so that the jury may have all practicable means for estimating the accuracy of their oрinions.
Opinons in such a case are received ex necessitate, for the reason that the minute appearances upon which they depend can not be so perfectly described as to enable a jury to draw a just conclusion from them. They are likenеd to opinions of witnesses, which are receivable, in “proving handwriting, identity, and intoxication, as excеptions to „the general rule that excludes opinions as evidence.
The only evidence in this cаse, as to the amount of damages the defendant’s cattle and horses did upon the plaintiffs’ land and to their crops, was the opinions of one of the plaintiffs, given as a witness, as follows : “ I think they damaged the hops fifty dollars.” “I think, from first of April last, they have damaged the meadows one hundred dollars.” “ I think they damaged thе oats twenty-fiye dollars.” “ I think they damaged the buckwheat ten dollars.”
It would have been competent fоr the witness to state the quantity of hops, the quantity of oats, and the quantity of buckwheat the fields would have produced in the year 1864, if the defendant’s cattle and horses had not trespassed upon them, and how muсh less each field would produce in consequence of- the injury done them by the cattle and horsеs of the defendant; and to have followed up such statements with’ other facts until his final conclusions would approximately *125show the amount of damages the plaintiffs had sustained. He could also have statеd how much hay the plaintiffs’ meadow would have yielded in the same year, if the defendant’s cattle and horses had not trespassed upon it, and how much less grew upon it in consequence of the trespassеs of those animals, and so on, until his ultimate statement of facts would have shown, as clearly as was pоssible, the damage done to the meadow. Or the witness could have been confined. exclusively to a statement of the facts, and then the justice would have been obliged to ascertain the amount оf-the plaintiffs’ damages from such facts.
It would also have been proper for the witness to state the market value of hops by the pound, oats and buckwheat by the bushel, and of hay by the ton, at the time of thе trial, and the ordinary fluctuations in such values, between the times the trespasses were committed and the times the crops would have been ready for market, if they had not been injured.
My conclusion is that, as thе only evidence to show the amount of the plaintiffs’ damages, or from which the justice could properly determine the amount, was the opinions of a witness, there is not sufficient legal evidence in the сase to sustain the judgment; and that therefore the judgment of the county court and that of the justice must be reversed, with costs.
Decision accordingly.
Parker, Mason and Balcom, Justices,!