143 N.Y. 160, Beardslee v. Dolge

Citation:143 N.Y. 160
Party Name:HELEN C. BEARDSLEE et al., Appellants, v. HENRY A. DOLGE, Respondent.
Case Date:October 09, 1894
Court:New York Court of Appeals
 
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Page 160

143 N.Y. 160

HELEN C. BEARDSLEE et al., Appellants,

v.

HENRY A. DOLGE, Respondent.

New York Court of Appeal

October 9, 1894

Submitted June 11, 1894.

Page 161

COUNSEL

Charles E. Snyder for appellants. The facts stated in the offers of proof must be deemed to be true. ( McNally v. P. Ins. Co., 137 N.Y. 389; Rehberg v. Mayor, etc., 91 id. 137.) The defendant is liable for his false return. ( Bryant v. Town of Randolph, 133 N.Y. 70; Hover v. Barkhoff, 44 id. 113; Clark v. Miller, 47 Barb. 38; 54 N.Y. 528; Wilson v. Mayor, etc., 1 Den. 595, 599; Rector v. Clark, 78 N.Y. 21; McDonnell v. Buffum, 31 How. Pr. 154; Houghton v. Stewart, 1 Den. 589; Brooks v. St. John, 25 Hun, 540; Cunningham v. Bucklin, 8 Cow. 178.) The defendant does not have the immunity of a judicial officer. ( People ex rel. v. Bd. of Health, 140 N.Y. 1; People v. Wheeler,

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21 id. 82; Ex parte Clapper, 3 Hill, 458; M. & H. R. R. Co. v. Archer, 6 Paige, 83; A. & N. R. R. Co. v. Brownell, 24 N.Y. 345; P. P., etc., R. R. Co. v. Williamson, 91 id. 552; Dorn v. Backer, 61 id. 261.)The decision of the Supreme Court and of the Court of Appeals in the certiorari proceeding affirming the order of the commissioner of highways is no defense to this action. ( Rector v. Clark, 78 N.Y. 21; Collins v. Hydorn, 135 id. 320; C. C. Bank v. Judson, 8 id. 254; Ferguson v. Crawford, 70 id. 253; Harrington v. People, 6 Barb. 607; Mandeville v. Reynolds, 68 N.Y. 528; Krekeler v. Ritter, 62 id. 372.) The General Term erred in construing the return. ( People ex rel. v. Beardslee, 45 Hun, 310.) The General Term erred in holding that it was manifest that the General Term and Court of Appeals must have reached the same conclusion if the portion under consideration had not been inserted therein. ( People ex rel. v. Comrs., etc., 13 Wend. 310.) An action for a false return is a proper remedy. ( People ex rel. v. Mayor, etc., 6 Hun, 652; People ex rel. v. Campbell, 18 J. & S. 82.) The complaint is in proper form. ( Rector v. Clark, 78 N.Y. 21; Brooks v. St. John, 25 Hun, 540.)

Edward A. Brown for respondent. The hearing must be upon the writ and return. (38 Hun, 43; People ex rel. v. McCarthy, 102 N.Y. 643.) There is nothing in the return, aside from the actual proceedings, truly, honestly and correctly returned, pursuant to the requirements of the writ, showing that the road did not run through any yard of the appellants. If there is or can be construed as such, then it was irrelevant and must be disregarded. ( Stone v. Mayor, etc., 25 Wend. 168; People ex rel. v. Mayor, etc., 2 Hill, 9; People ex rel. v. Schillinger, 32 N.Y. S. R. 354.) The commissioner, this defendant, after an inspection of the premises, held that the proposed road did not pass through the barnyards of the Beardslees. Therefore, the plaintiffs cannot recover. ( Ford v. Smith, 1 Wend. 48; Millan v. Jenkins, 9 id. 298; Rector v. Clark, 12 Hun, 198; 78 N.Y. 21.)

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BARTLETT, J.

This is an appeal from the General Term, fourth department, affirming a non-suit at...

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