People ex rel. Foote v. Dewey — 8 N.Y. Sup. Ct. 529

Majority

p. 529

THE PEOPLE ex rel. ASA FOOTE v. RALPH S. DEWEY.

Headnote

Venae viewers—question of jurisdiction only, considered on certioi-ari—presumption against jurisdiction, net indulged—proportion of fence to he maintained hy each, party.

The provisions of the Bevised Statutes^[1] make the decision of the fence viewers final, and, on certiorari, the court is restricted to the consideration of the question of jurisdiction, and will not presume facts to exist, which take away their jurisdiction. The law^[2] does not require each party to build one-half the fence, but a “ just and equal proportion of the division fence; ”^[3] that is, just and equal with reference to the cost of construction and maintenance.

Certiorari to the fence viewers and town clerk of the town of

p. 530

Sidney, Delaware county, to review proceedings for the decision of a line between relator and defendant Dewey.

Belknap db Edson, for the relator.

F. B. Arnold, for the defendant.

Opinion by Boardman, J.

Present—Miller, P. J., Boardman and James, JJ.

Proceedings affirmed, with costs.