Barton v. Corcoran

Appellate Division of the Supreme Court of the State of New York

Decided May 7, 1913

Appellate Division of the Supreme Court of the State of New York · decided 1913-05-07

Appeal by the plaintiff, William Barton, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 10th day of January, 1913, upon an order reversing a judgment of the Justice’s Court in favor of the plaintiff, entered in said clerk’s office on the 10th day of January, 1913.

Relies on Bronk v. Becker

Decided 1913-05-07

Kellogg, J. (concurring in result):

¶1I do not think that Bronk v. Becker (17 Wend. 320) has been overruled or affected by the cases cited in the opinion of Justice Woodward. Clark, the tenant, was, therefore, bound by the division of the fence, and lost his corn because he did not maintain his part of the fence. When the fence viewers were *149dividing the fence the owner did not appear, but told the tenant to represent him, and the tenant was present. I think County Judge Ferris disposed of the case upon the right theory. If the evidence here correctly shows the facts Clark was not entitled to recover. The plaintiff’s remedy was to appeal from that judgment rather than to bring an action against the defendant.

¶2Smith, P. J., and Lyon, J., concurred.

¶3Judgment of the County Court affirmed, with costs.