3 Wend. 42 | N.Y. Sup. Ct. | 1829
By the Court,
By the third section of the act relative to turnpike companies, (1 R. L. 230,) all turnpike roads are to be laid out by commissioners to be appointed by
The judge was certainly right in* rejecting the proof that one of the appraisers was not a freeholder. Whether the appraisers were freeholders or not, was not enquirable into collaterally. Their appointment had been made by an officer whose duty it was to have appointed freeholders and no other. If he erred in that particular, the appointment might have been examined in this court on certiorari, and if illegally made, would have been set aside. The statute, (1 R. L. 155,) which, in certain actions, allows the whole matter to be given in evidence on general pleadings, cannot be construed to mean that any matter whatsoever may be given in evidence. The object of the statute was only to relieve parties from intricate special pleading, and not to allow matter to be given in evidence, which, if specially pleaded, would not be a defence.
The whole defence rests upon the construction to be given to the third section of the act relative to turnpike companies. The general principle is too well established to be controverted, that where three or more persons are appointed to do any
The inquisition made by the two appraisers must be taken as conclusive, certainly so far as it states their own proceedings. It states the appointment by the judge, which was not necessary to have been stated. It does not state a notice to the apprisers, but it states that the appraisers, on the day of their appointment, named a day for meeting on the land. Notice, therefore, may well be presumed, particularly as the object of the notice was accomplished by bringing together the appraisers, and procuring the designation of a day for meeting upon the land. The inquisition speaks of the appraisers
By the inquisition, the proceedings appear to have been regular; but if they were not, so long as a valid appraisement appears, we will not enquire collaterally into the proceedings of the appraisers. Enough is shewn to give them jurisdiction. The inquisition is on file, and a matter of record. If incorrect, it might have been set aside on certiorari.
I am of opinion, therefore, that the motion to set aside the nonsuit should be denied.