New-Windsor Turnpike Co. v. Ellison — 1 Johns. 141

Majority

p. 141

New-Windsor Turnpike Company against Ellison.

Headnote

In an action brought by a Turnpike • Company, against a person for opening a highway near the turnpike gate, to avoid the payment of toll, the court allowed a spe- ' cial injury at the instance of the plaintiffs.

FISK, for the plaintiffs, moved for a struck jury in this cause, the grounds of which were set forth in an affidavit. It was an action against the defendant, for removing the fence near the turnpike gate, and making a highway across his land, for the purpose of avoiding- the turnpike, and by that means to defraud and injure the plaintiffs.

L. Elmendorf, contra,

■ offered affidavits to prove that the removal of the fence, and making the highway, were for

p. 142

the private accommodation of the defendant, and not with a view to avoid the payment of toll.

Questions of this kind, affecting the pub-lick, are important in their consequences.' '• "

Rule granted;

Spencer, J. dissented.