Heidenheimer v. Wilson

31 Barb. 636 | N.Y. Sup. Ct. | 1859

By the Court, Davis, J.

I have examined the return in this case carefully, and do not think any of the points arising upon the proceedings during the trial well taken'. The Mason account belonged to Mason’s legal representatives. There is no evidence that Mrs. Mason was his executrix or administratrix, and there is no legal presumption that she occupied either ofdhose relations to the estate of her deceased husband. There was no evidence, therefore, showing any authority in her to transfer the account, and hence the title of the defendant to it wholly failed. The evidence tended to show, also, that it was payable in jewelry, and that the plaintiff had held himself in readiness to pay it in that way. From the evidence on this subject the justice would certainly have been warranted in finding that the plaintiff had not acted in good faith; still it was not so entirely clear that we can say he was not justified in finding the other way.

As to the Garter account, it is obvious it was disposed of upon a question of fact arising from conflicting evidence. The justice probably found that it was, by the express terms of the contract, payable in jewelry, and that there had been no default on the part of the plaintiff. The evidence was sufficient to sustain that conclusion. Besides, it did not satisfactorily appear that the account was in fact assigned to the defendant before the commencement of the suit. This was a fact for the defendant to establish affirmatively.

The rejection of the evidence offered on the day of the summing up is not error. It was wholly in the discretion of the justice whether to receive the evidence at that time or not, and we cannot review his exercise of that discretion. In this case there was certainly no abuse of discretion.

• The objection that the judgment was rendered more than four days after the submission of the cause is not well founded, in fact. The case was in effect postponed for a final hearing to the day when the counsel appeared and argued it, and the justice had an undoubted right with or without the consent of the parties to take four days from that time.

The point most relied on in the case is as to the jurisdiction of the justice. It is claimed that the act authorizing the election of a justice of the peace in the village of Medina and clothing him with the same jurisdiction in civil and criminal cases as justices of the peace of the several towns of this state, is unconstitutional and void. This question was not raised before the justice himself, and there is therefore nothing whatever in the case to base it upon, except that the justice commences his return by saying, “ I, Darius W. Cole, a justice of the peace of the village of Medina in said county [of Orleans] do hereby certify and return,” &c. It is very questionable whether this is sufficient to show that Mr. Cole is the justice of the peace which the charter of the village of Medina authorizes the citizens of that village to elect. He may be, consistently with this description, a justice of the peace of one of the towns in which that village is situated, in which case the words “ of the village of Medina” would be operative only as a designation of his place of residence. We should hesitate, therefore, to reverse this judgment on the ground urged, because the appellant has not given us in the return satisfactory evidence that the justice before whom this case was tried is the one whose jurisdiction is obnoxious to the objection now made. But assuming that the justice in this case was elected under the charter of the village of Medina, and derives his jurisdiction therefrom, we are not prepared to hold that the act authorizing his election and conferring his power is unconstitutional. The question is a grave one, and by no means free from doubt. As an original question I confess it seems to me very difficult to sustain the authority of the legislature in such cases, but I consider the question in effect settled by the court of appeals in the case of Sill v. The Village of Corning, (15 N. Y. Rep. 297.) That case, it is true, was not entirely analogous to this in its facts, but I do not see on what ground it is justly distinguishable in principle. If under the constitution the legislature can create in incorporated villages local courts of inferior civil and criminal jurisdiction, I do not discover any sound reason why they may not measure that jurisdiction by the standard of authority conferred on justices of the peace of the several towns.

[Erie General Term, November 28, 1859.

There is nothing in the point made hy the respondent, that this court has not jurisdiction to entertain appeals in cases of this character.

The judgment should he affirmed.

Greene, Marvin and Davis, Justices.]