Majority
p. 146Dodge against Coddington. ALBANY, Feb. 1808 .
Headnote
The court may order a justice to return the evidence in a cause before him, and if it does not appeal-sufficient to support the action, the judgment will be reversed. In an action on a note to pay money, when collected, &c. .the plaintiffs • must allege, and prove, that the money was collected, in order to recover on the proTílSCoIN error on certiorari. The defendant in error declared against the plaintiff in error, in the court below, on a certain writing or due bill, as follows :
“ Due y. Coddington, 17 dollars and 38 cents, for sheriff’s fees, which I promise to pay, when collected, from the estate of the late John and Cornelius Wynkoop, deceased, &c.
“ Newburgh, 2d September, 1799.
(Signed) “ Levi Dodge.”
The defendant below pleaded non assumpsit, and the statutes of limitation. The plaintiff proved the handwriting of the defendant, but produced no evidence that the defendant had collected the money. The justice gave judgment for the plaintiff.
H. Bleecker, for the plaintiff in error,
contended, that , , , the plaintiff ought to have averred in his declaration, that the defendant had collected the money; and to have proved ■that averment.
p. 147
L. Elmendorf contra,
objected, that the court cou ld not inquire as to the facts, nor reverse the judgment, unless for errors in law ; and not because it was against evidence.
The act of the legislature authorises the court, to require the justice to return the evidence ; and if, on the return of the evidence, it does not appear sufficient to support the action, the court will "reverse the judgment; and we have often so decided. In the present case, there was a condition precedent, and the proof does not support the declaration.' The judgment below must be reversed»
Judgment reversed.