48 N.Y. 313, Happy v. Mosher

Citation:48 N.Y. 313
Party Name:JACOB HAPPY, Respondent, v. ALFRED MOSHER et al., Appellants.
Case Date:January 01, 1872
Court:New York Court of Appeals
 
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48 N.Y. 313

JACOB HAPPY, Respondent,

v.

ALFRED MOSHER et al., Appellants.

New York Court of Appeal

January 1, 1872

Argued Sept. 27th, 1871

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[Copyrighted Material Omitted]

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COUNSEL

S. L. Stebbins for appellants. The act of 1862 is unconstitutional,

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and the bond therefore void. (Brookman v. Hamill, 4 Hand, 554.)The application was insufficient, and the county judge acquired no jurisdiction. This point is available here, although not taken on trial. (Veltman v. Thompson, 3 Comst., 438; Palmer v. Lorillard, 16 Johns., 343, 353, 354; Beekman v. Frost, 18 Id., 544, 559, 569, 565; Sandford v. Granger, 12 Barb., 392, 403; Caldwell v. Colgate, 7 Barb., 253; Brookman v. Hamill, 4 Hand, 554, 564, 565.) The reception of evidence of the declarations of Minerly was error. Paige v. Cagwin, 7 Hill, 361, 369, 379, 380; Hurd v. West, 7 Cow. (3d ed.), 752, 759 and note; Kent v. Walton, 7 Wend., 257; Whittaker v. Brown, 8 Wend., 490; Bristol v. Dunn, 12 Wend., 142; Beach v. Wise, 1 Hill, 612; Stark v. Boswell, 6 Hill, 405; Christie v. Bishop, 1 Barb. Ch., 115; Brisbane v. Pratt, 4 Denio, 63; Smith v. Webb, 1 Barb., 230; Brown v. Mailler, 2 Kern., 118; Westlake v. St. Lawrence Mutual Ins. Co., 14 Barb., 206, 213; Smith v. Schanck, 18 Barb., 344; Booth v. Swezey, 4 Seld., 276; Tousley v. Barry, 16 N.Y. 497; Osborn v. Robbins, 37 Barb., 481; Jones v. East Society M. E. Church of Rochester, 21 Barb., 161; Cuyler v. McCartney, 33 Barb., 165; Schenck v. Warner, 37 Barb., 258; Foster v. Beals, 21 N.Y. 247; Vrooman v. King, 36 N.Y. 477; Earl v. Clute, 1 Keyes, 36; Cuyler v. McCartney, 40 N.Y. 221, 235.)

Erastus Cooke for respondent. The lien created by the act of 1862 is valid. (Sheppard v. Steele, 43 N.Y. 52; Brookman v. Hamill, 43 N.Y. 552; People's Ferry Co. v. Beers, 20 How., 393, 402; Maguire v. Card, 21 How., 248; Allen v. Newbery, 21 How., 245.) There being a valid lien, the county judge had jurisdiction. Technical objections, affecting the regularity of proceedings, cannot be raised for the first time upon appeal. (Mabbett v. White, 12 N.Y. 451; Elwood, v. Deifenday, 5 Barb., 406; Numan v. Wells, 17 Wend., 142, 143.) The giving the bond was an admission of the regularity of the proceedings. (Coleman v. Bean, 3 Keyes, 94.)

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Taking a note simply, would not discharge the lien. (The Nestor, 1 Sumn., 73; Hill v. Beebe, 13 N.Y. 557.)

EARL, C.

It is claimed that the statute of 1862, by which this lien was created and under which the attachment proceedings were instituted is void, as in conflict with the constitutional provision which provides that no person shall be deprived of his...

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