Stafford v. Mayor of Albany

6 Johns. 1 | N.Y. Sup. Ct. | 1810

Per Curiam.

The judgment of the mayor’s court, in March, 1809, setting aside the assessment, and judgment thereon, by reason of some defect in the precept for summoning the jury, was not an act warranted by law. The statute does not require that the precept should specify particularly, by metes and bounds, the land to be valued. That was a matter resting in evidence, to be disclosed upon the trial. By the appearance of the parties at the trial, and by the view which the jury had, the mistakes, if any, in the precept, xvere waived; and especially, since the defendants, by their counsel, moved for judgment, in pursuance of the inquest found. The statute makes the assessment concluslve, and the rights of the parties were fixed when this suit was comnlenced. The subsequent interference ~f the court, in setting aside the inquisition, by reason ~in alleged irregularity or defect in the precept, was unauthorj~ed, and Cannot afFect the validity of the. proceeding.

The plaintiff has not counted ott these proceedings, as on a record, but as facts which give him a right to the sum assessed against the corporation. The plea of nul tiel record is, therefore, wholly inapplicable to the case, and the issue is immaterial. An immaterial issue is Said to be, where that which is materially alleged by the pleadings, is not traversed, but an issue is taken on such a point as will not determine the merits of the cause. If this had been an issue to the country, according to the case of Staple v. Hayden, (2 Salk. 579.) a repleader could not be awarded, till after trial, because the fault of the issue might be helped by the statute of jeofails; but that principle not applying to an issue to the court, we are of opinion, that this issue being immaterial, a repleader must be awarded.

Repleader awarded.