Van Bergen v. Bradley — 2 Trans. App. 295

Majority

p. 295

ROBERT L. VAN BERGEN v. THOMAS BRADLEY and Other.

Headnote

Appeal, Authority for — Record without Order for Judgment by General Term.

Where upon, the record there does not appear to have been any order of the General Term upon which judgment was entered — but it only shows the trial, the verdict of the jury, and a statement that a new trial was denied, there is no authority for an appeal to this Court.

This action was commenced in a Justice’s Court, and was removed into the Supreme Court on a plea of title. It was tried at the Circuit, and a verdict was rendered by the jury in favor of the Defendants. A motion was then made for a new trial on a case containing exceptions. The motion was made at General Term, before judgment, and was denied. Thereupon judgment was entered on the verdict, and the appeal to this Court is taken from that judgment.

The first question that arises is, in regard to the appeal, is the ease before this Court in such form as to admit of review % It does not appear that the judgment appealed from was given or directed at General Term. The order then made was simply this, “Hew trial denied, with costs.” This left the case to stand on the verdict for the Defendants, and they were then at liberty to enter judgment thereon, as they did, the same as if no proceedings for a new trial had been taken. True, the opinion delivered at General Term, on the motion for a new trial, closes with this remark: “ There must be judgment for Defendants ; ” but the opinion constitutes no part of the record, and the order entered is simply, new trial denied. Hor does the entry of judgment purport to rest on an order of the General Term directing judgment. It recites the trial and verdict, the motion for new trial, and its denial; following which recitals is the ordinary adjudication that the Defendants recover of the Plaintiff $197.89 for their costs and disbursements of the action. There is nothing in the record before the Court showing that the judgment was ordered at General Term, and its only authority, so far as we can

p. 296

see, is the trial and verdict. As was decided by this Court in Lahens v. Fielden (15 Abbott, 177), it is not enough that it appears probable merely that the judgment is appealable. It must, therefore, be regarded as the ordinary case of a judgment entered on the verdict of a jury. There is no authority for the appeal to this Court, and it should be dismissed, with costs.

But if permitted to examine the cáse bn the merits, it will be' found that the exceptions urged on the motion for á new trial were not well taken, and that the judgment is right on the facts proved. It was well established that the locus in quo was a public highway, duly laid out arid recorded in the town records, and that the acts complained of were done by arid under the áú-thority of the owner, within the lines of the highway, and for the purpose of opening it for public travel. The objection to the order of the commissioners laying out the road, that it did not incorporate the survey, is of no force. The order referred to the survey in direct terms, and the survey was attached to the order, and was recorded Sas part of it. It was in legal effect incorporated into the order, inasmuch as it constituted part of it. The purpose of the statute, which was to secure a record of the locality of the highway, was fully answered, and in such case amere informality will not be deemed fatal, there béing a substantial compliance with the requirements of the law. -

It is now urged that the appointment of commissioners to assess the damages was made by the county judge instead of the County Court. But this objection was not raised on the trial.' -The only objection to the certificate of assessment then urged was, that the paper had never been recorded in the town clerk’s office, - although it had been' there-filed, and that-the highway had not been legally laid out. Had the objection, now insisted on, been then suggested or'urged, it doubtless would have béen satisfactorily answered, for the certificate itself recites thé appointment as made by the County Court, and the Defendants admitted that the commissioners were “ duly-appointed," although it is added, “ by the county judge.” " It is a sufficient answer to the objectioh that it was not taken on the trial.

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It is objected that the application to the commissioners for laying ont the highway, and the certificate of the freeholders as to its propriety and necessity, were not duly proved. Those papers were duly filed with the town cleric, and were produced on the trial from the files of papers in the clerk’s ofiice, followed by the order of the commissioners laying out the road, also duly filed and recorded. This was sufficient, without further proof of the signatures of the persons by whom they purport to be signed. They were properly on file in the clerk’s office as records (2 R. S. 403, § 122, 5th edition; also 1 R. S. 830, § 11, et seq.). So the order laying out the highway, duly filed and entered, became a public record. All these papers so filed and recorded, being public records, proved themselves. Greenleaf says that such documents, being of a public nature, are admissible in evidence, notwithstanding their authenticity is not confirmed by those usual and ordinary tests of truth required to be supplied to matters of a private character (1 Greenleaf, §§ 483, 484, also § 128). Being made and preserved by authority of law for the benefit of the public, they stand on a different footing as evidence from private papers which affect personal and individual right only.

The laying out of the highway in this case was well proved, and the judgment should be affirmed, with costs, conceding that the merits are before us on this appeal.

All concurred.

Affirmed. JOEL TIFFANY, State Reporter;