Kelley v. Horton

Decided October 15, 1823

New York Supreme Court · decided 1823-10-15

On certiorari to a Justice’s Court. The action was trespass fn the Court below, by Kelly against Horton & Smith, for pulling down the plaintiff’s fence. Smith, as overseer of highways, and Horton, as coming in his aid, justified this, and proved by a witness, that he heard the plaintiff tell • ' Smith, the overseer, that the former would open his fence when the latter wished to work the road. Verdict and iudgnjent for the defendants.

Decided 1823-10-15

Curia.

¶1The testimony of the witness who heard the plaintiff tell the overseer that he would open his fence, when , , . the latter wished to work the road, seems to admit that a roaci had been laid there; hut by the 39th section of the act to regulate highways, (2 R. L. 283,) the plaintiff was entitled to 60 days notice from the commissioners, or a majority of them, to remove his fences : and the overseer had no right , ... , . , . to open the road without their orders. The verdict is against ^aw an¿ evidence.

¶2T 1 Judgment reversed.