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New York and Erie Rail Road Co., Respondents, agt. Coburn Appellant.

and that such intention is evidenced by the general scope and provisions of the act. The 14th section authorizes the company to present a petition to the court, and declares what allegations it shall contain, and the practice to be adopted. By the 15th section, those interested in the land may show cause against the prayer of the petition, and may disprove any of the facts alleged in it. The 16th section prescribes the duties of the commissioners, and directs that they make a report of the proceedings before them, with the minutes of the testimony, taken by them, if any. By the 17th section the report, if conformable to the provisions of the act, is to be confirmed. The 18th section gives the appeal, and upon the hearing the court may direct a new appraisal. The second report is to be final and conclusive upon all the parties interested. If the amount of compensation is diminished by the second report, the appellant is to refund the difference. It is argued that these provisions indicate an intention to give the land owner a second hearing before commissioners, at the risk of having the amount of the first appraisal reduced. I am not able to see any thing in these provisions indicating the intention of the legislature that a second appraisal may be claimed as a matter of right.

The statute carefully guards the rights of the land owner. The duties of the commissioners are clearly defined. They are to view the premises and to hear the proofs and allegations of the parties and reduce the testimony taken by them to writing. The party whose land is to be taken has here a full opportunity to be heard-a complete trial. He may call and examine witnesses, and their evidence is to be preserved and reported to the court. If he appeals, the court will review the proceedings of the commissioners. This will include their decisions and an examination of the evidence. Errors may have been committed by the commissioners, which may appear from their report, but which could not be raised as objections to its confirmation. These are to be considered upon the appeal.

Every party has a right to be once heard, but I know of no principle giving him the right to demand a second hearing or

Schenectady and Saratoga Plank Road Co. gt. Thatcher.

trial, when no error has been committed upon the first, unless such right is expressly given by statute. In those cases generally where may has been construed as imperative the public or private persons have had rights and interests, which could not be secured to them, without an exercise of the power conferred upon some officer, court or body, and in such cases the exercise of the power becomes a duty, and the language of the statute is construed as imperative (see cases above cited).

The appellant has had one appraisal and he can not, as a matter of right, have another. He alleges no error in the report of the commissioners. He called and examined several witnesses, and their evidence is contained in the report. None were called by the respondents. He does not claim that the compensation awarded, was not in accordance with the evidence, but he can now produce witnesses upon whose evidence he supposes the commissioners would allow him a greater compensation.

A new appraisal should not be directed.


THE SCHENECTADY AND SARATOGA PLANK Road Co. agt. THATCHER. A bill of exceptions when attached to the judgment roll, becomes a part of it

by the last clause of g 264. Therefore a judgment roll with the bill of exceptions attached is equally sufficient with one where the bill of exceptions

is incorported in the roll. The clerk must enter in the judgment book "the judgment" as required by

9 280 in cases where the decision of the court is given in writing and filed under $ 267, as in all other cases; and must insert a copy of such judgment

in the judgment roll in making it up, and sign the same. A "bill of costs,"

," " notice of adjustment," "affidavit of disbursements and attendance of witnesses," are papers which do not constitute any part of a judgment roll, and should not be attached, as they unnecessarily encumber it.

Special Term, 1851. Motion to set aside judgment roll for irregularity. The action was tried before the circuit judge, a trial by jury having been waived. The judge haring made his decision in favor of the plaintiffs, judgment was per

Schenectady and Saratoga Plank Road Co. agt. Thatcher.

fected thereon on the 4th of October 1851. Notice that judgment had been entered, was served on the defendant's attorney on the 6th of October 1851, and on the next day the defendant's attorney served the necessary papers for an appeal. Exceptions had been taken upon the trial and before the judgment was entered a bill of exceptions had been signed and sealed and filed with the clerk. In making up the judgment roll the bill of exceptions was omitted. The roll consisted of the summons, complaint, answer, reply, judges decision, bill of costs, notice of adjustment and affidavits of disbursements and attendance of witnesses. No judgment was attached to the roll, except the decision of the judge, nor was the roll signed by the clerk. Upon these facts the defendant's attorney moves to set aside the judgment roll, or that the same be amended in the particulars specified.

P. POTTER, for Plaintiffs.

W. L. LEARNED, for Defendant. Harris, Justice. - It appears by the affidavit of the defendant's attorney, that the bill of exceptions has already been attached to the judgment roll. Under the provision contained in the last clause of the 264th section of the Code, it became when attached, a part of the roll.

But the more important question involved in this motion relates to the form of entering judgment. The clerk, as appears from the affidavit read in opposition to the motion, has supposed that in a case like this, where the decision of the judge is made in writing and filed, such decision is a sufficient judgment to answer the requirements of the statute. Judging from the rolls returned upon appeals, and which have come within my own notice, I am inclined to think this no uncommon error. The 279th section of the Code requires the clerk to keep a book for the entry of judgments. The succeeding section prescribes the entry which shall be made in the judgment book. It must “ specify clearly the relief granted, or other determination of the action.” Excellent forms for these entries have been prepared by Mr. Monell, and may be found in his book of practice, p. 479,

Schenectady and Saratoga Plank Road Co. agt. Thatcher.

et seq. Until judgment is thus entered, the clerk is not authorized to make up the judgment roll. The statute requires him “ immediately after entering the judgment,” to proceed to make up the roll, and among the papers necessary to constitute a complete judgment roll, is “ a copy of the judgment,” that is a copy of the entry of the judgment made by the clerk in the judgment book. Such entry in the judgment book and copy in the roll is the only record evidence that judgment has been perfected. The judgment roll in this case is defective in this respect. It contains the decision in writing required by the 267th section of the Code, but not the judgment to be entered thereon as required by the same section.

The clerk also erred in attaching to the roll the bill of costs, the notice of adjustment, and the affidavit of disbursements and attendance of witnesses. These, properly, constitute no part of the roll, and it subjects the parties to unnecessary expense, and is a great inconvenience to the court having occasion to review the proceedings, to have the record encumbered by such useless matter. In the entry of judgment to be made by the clerk, he is required by the 311th section of the Code, to insert “ the sum of the charges for costs, &c.” The amount only is to be inserted, and not the papers necessarily used in ascertaining such amount.

There must be an order directing the clerk of Schenectady, in case he has not already done so, to make an entry of the judgment in this action in the judgment book kept by him, and to attach a copy of such entry to the judgment roll, which should be signed by him. The papers used upon the adjustment of costs must be detached, as constituting no part of the roll. Neither party is to have costs against the other upon this motion.

Howe agt. Peckham.


Howe agt. Peckham.

The 167th section of the Code does not authorize the severing of a single cause

of action, It seems, that the legislature in using the term "several causes of action” in

this section, must have had reference to the causes of action as they were

then founded, limited and defined by the common law. Where the plaintiff sued the defendant in an action for negligence in allowing

the defendant's team to run away, by which the plaintiff's horse and wagon were run over, and his wagon broken, the horse damaged and the plaintiff personally injured; on demurrer to the complaint for uniting different causes of action, to wit: injuries to the person and injuries to the property as classed by $ 167, held that negligence was the ground of the action;

and the damages both to the plaintiff's person and his property resulted from the alleged negligence; and was but one act and constituted but one cause of action,

Special Term, October 1851. Demurrer to Complaint. The complaint alleged that the plaintiff was driving along the highway, in a one-horse wagon; that a short distance behind the plaintiff a person was driving a team, drawing a two-horse wagon and travelling in the same direction the plaintiff was; that a short distance behind this person, was the defendant's team, drawing a two-horse sled, and travelling in the same direction. That the defendant carelessly and negligently left his team to go along the said highway without any driver, and went and got into the wagon with said person, so driving between the plaintiff and defendant's team, and rode with said person; and that said team of defendant being so left, started into a run, and run over the plaintiff, his horse and wagon; injured the plaintiff's person, broke the wagon and harness, and damaged the horse. The complaint, at the conclusion of the statement of the cause of action, averred that the injuries were occasioned by the " “

gross and wilful carelessness and negligence of defendant."

A. N. SHELDON, for the defendant. The complaint is drawn in violation of the 167th section of the Code. It contains two distinct and separate causes of action within the meaning of this section, to wit: injuries to the person and injuries to the property of the plaintiff (Monell's Practice, 46 to 48).

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