Village of Port Jervis v. Barrett Bridge Co. — 10 N.Y. St. Rep. 339

Majority

p. 339

Village of Port Jervis, App’lt, v. Barrett Bridge Company, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

1. Recorder of Port Jervis is justice of the peace of Benpark.

The recorder of the village of Port Jervis is, for the purposes of civil trials within the village, a justice of the peace of he town of Benpark.

p. 340

2. Streets and highways—Dedication and acceptance.

Certain lands were sold bounded by a street as laid out by the owner of the property, of which it formed a part. Said street was used as a public highway. The village engineer employed to make a map of the village put this street upon it. The street commissioners had for many years had charge of it and removed obstructions thereupon. There were residences on both sides of it and the city surveyor put up a monument upon it and part of it had been worked. Held, that there was a dedication of the street by the owner and proof enough to uphold a decision that there was an acceptance of it by the' village.

Appeal . from an order of the county court of Orange county denying a motion to dismiss an appeal, and from a judgment of that court reversing a judgment in favor of plaintiff rendered in an action tried before the police justice of the village of Port Jervis.

C. E. Cuddeback, for appl’t; Lewis L. Carr, for resp’t.

The recorder of the village of Port Jervis is, for the purposes of civil trials within the village, a justice of the peace of the town of Benpark. Chap. 370, Laws of 1873. People ex rel., etc., v. Dorgan, 76 N. Y., 47 . The appeal from the judgment, as if rendered by a justice of the peace, was proper.

The motion to dismiss the appeal because a writ of certiorari was not obtained to review the judgment, was properly denied.

Upon the merits the case is not plain. It was probably plain enough to the trial court, but without a map and without a knowledge of the locality, it is not certain that the appellate court can apply thó evidence properly to the issue tried. The village sued for an obstruction or encroachment upon Water street, made by defendant.

It was admitted on the trial that the defendant had erected a fence across a street ‘"where Water street would be if that street was where it is claimed to be by the plaintiff.” The sole issue was whether there was a street there or not. The street had never been laid out by the town or village. The land belonged to one Farnum. He, for the purpose of selling lots, made a map, and upon it laid out or designated streets, and this street was one of them.

The lands were sold bounded by the streets, and thus it becomes a street as to those who bought upon it not formally a public one, but which could be kept forever open by the lot owners who bought under the map.

The village could do nothing without there was a dedica- - tion and acceptance.

This was the point of the controversy. The evidence was conflicting, but the weight of it is in favor of the plaintiff. There was no doubt as to the dedication by Farnum and as to the acceptance. It was proven that for twenty-five years “ it was used as a public highway.” It was proven that the village engineer was employed to make a map of the village, and this street is upon it. It was proven that for

p. 341

many years the street commissioners had had charge of the street and removed obstructions upon it. There are residences upon both sides of this street part of the way. The city surveyor put monuments upon the street in 1867 or 1868.

The street has been worked from Lumber street to Brook, about 600 feet.

The defendant, in reply to this evidence, called witnesses who testified to facts tending to show that Farnum, after the dedication, used the place where the fence complained of is built, as a storage place for lumber. This proof is unsatisfactory. Farnum had no right to do so as against his grantees, and it was against his interest to do so. He is dead, and it does not appear how long since. Upon the whole the proof of acceptance is convincing.

The judgment of the county court should therefore be reversed and that of the justice affirmed, with costs.

Dykman and Pratt, JJ., concur.