FOURTH DEPARTMENT, JANUARY TERM, 1875. 33; Robotham v. Wilkinson, 8 Ellis & B., 123, 142; 1 Penn., 726; 7 Cush. [Mass.], 361; 8 id., 21; 5 Mees. & W. Exch., 50.) The difference in the market value of the property before the road was laid out and the market value after it was laid out, was the correct rule. (Matter of Hamilton Avenue, 14 Barb., 415; Matter of Furman Street, 17 Wend., 649, BRONSON, J.; Troy & Boston R. R. Co. v. Lee, 13 Barb., 169; Thompson on Highways, 194.) The justice properly refused to charge the jury as requested. It is no part of the justice's duty to charge the jury in such cases. The request to charge was erroneous, as Fitch was the owner of a freehold estate in the lands over which the new road was laid out. DWIGHT, J.: The claimant was the owner of the gypsum or plaster upon the lands over which the road was laid out, with the right to mine and remove the same. This was an estate or interest in the lands, distinct from that of the owner of the soil, which gave to its possessor an undoubted right to damages to the extent to which his estate or interest was injuriously affected by the laying out of a highway over such lands. The measure of damages apparently adopted by the jury, was the correct one, viz., the difference between the value of the claimant's estate or interest without the road, and its value with the road, as laid out.* Counsel for the relator urged that the claimant should be allowed only what it would probably cost him to remove the road from its official location while excavating the plaster beneath it, and to restore it to such location after the excavation was complete. Of course this is out of the question. No individual is at liberty to deal in this manner with the highways of a town, and, after making an excavation of from eighteen to twenty-seven feet deep, it would be difficult to restore the road to its former condition. It was no error for the justice of the peace to refuse to charge the jury, even if it had been good law that he was requested to charge. No justice of the peace is required to charge a jury in an action tried before him. But in this statutory proceeding for the reassessment of damages, the jury are especially the judges both of the * Matter of Furman St., 17 Wend., 649; Troy & B. R. R. Co. v. Lee, 13 Barb., 169. FOURTH DEPARTMENT, JANUARY TERM, 1875. law and the fact. The duties of the justice are mainly, if not wholly, ministerial. He can hardly be said to act judicially in any part of the proceeding. He issues his summons for twelve persons, already selected without his intervention, as jurors; draws by lot six of the number to act in the proceeding; administers the oath to them, and to the witnesses produced before them, and certifies their verdict to the commissioners of highways. The jury view the premises, hear the parties and witnesses, and render their verdict under their hands, " and the same shall be final."* It is only in case of manifest irregularity in the proceedings, or of clear violation of principle in the assessment of damages, that such a verdict will be disturbed. No such error or irregularity seems to have occurred in this case. The writ of certiorari will be quashed, and the proceedings confirmed. Present- MULLIN, P. J., SMITH and DWIGHT, JJ. Writ quashed, and proceedings confirmed. * Laws of 1847, chap. 455, §§ 4, 5, 6. MEMORANDA OF CASES NOT REPORTED IN FULL. ISAIAH EMMONS AND OTHERS, PLAINTIFFS, v. SYLVESTER Chapter 482, Laws of 1862-canal boat is a vessel within meaning of Exceptions of. A canal boat is a vessel within the meaning of chapter 482 of the Laws of 1862, Upon the trial of this action, brought upon a bond given to release a canal boat Where a case comes before the General Term on exceptions taken at the circuit, no questions can be passed upon, except those arising upon exceptions duly taken to some decision made by the circuit judge at the trial, or in the final disposition of the case. MOTION for a new trial, on exceptions ordered to be heard in the first instance at the General Term. Cook & Fitzgerald, for the plaintiffs. E. Thayer, for the defendants. Opinion by SMITH, J. Present MULLIN, P. J., SMITH and GILBERT, JJ. Judgment reversed, and new trial granted, costs to abide event. *Bird v. The Steamboat Josephine, 30 N. Y., 19; Vose v. Cockroft, 44 id., 415. HUN-VOL. III. 69 3 545 3ap189 FOURTH DEPARTMENT, JANUARY TERM, 1875. JAMES P. ROSS, APPELLANT, v. EASTMAN COLBY, RESPONDENT. Neglect to move for nonsuit― effect of Appeal to County Court- question of fact on appeal for error of law — Evidence as to efforts to produce witnesses. When a defendant does not move for a nonsuit, he admits that the evidence on the part of the plaintiff is sufficient prima facie to justify a verdict in his favor. If a defendant, in an action brought before a justice, desires another determination upon the facts of the case, he must appeal to the County Court for a new trial; otherwise, the appellate court will not be justified in reversing a judgment for the insufficiency of the evidence. The admission or rejection of evidence to show fruitless efforts (by attachment or otherwise) on the part of the plaintiff to procure the attendance of a witness whom he might reasonably be expected to produce, is not a ground for reversal. It could not affect the determination of the issues.* APPEAL from a judgment of the Monroe County Court, reversing a judgment of the Justice's Court on appeal for error of law. The notice of appeal stated as one of the grounds thereof, that the verdict and judgment were contrary to law and evidence. This was disregarded in the County Court and in this court, because the question of the sufficiency of the evidence to warrant a verdict was not raised in the Justice's Court. The action was brought to recover damages for injuries to plaintiff's property, sustained from a fire caused by defendant. A. J. Wilkin, for the appellant. Horace J. Thomas, for the respondent. Opinion by GILBERT, J. Judgment of County Court reversed, and that of Justice's Court affirmed. * People v. Coleman, 1 Hun, 596; S. C., 4 N. Y. Sup. Ct. R., 61. FOURTH DEPARTMENT, JANUARY TERM, 1875. 3h 547 HELEN A. VAN KUREN, RESPONDENT, V. JOHN SAXTON, APPELLANT. Master and servant — when relation does not exist - Contract to pay for services or board-when not implied where parties are related. Where plaintiff's sister-in-law became a member of his family on the invitation of his wife, and with his assent, to remain with her children until she could do better, she performing services in the household, and receiving board for herself and children, no intimation being given by either party that pecuniary compensation should be made by one to the other, held, that the sister-in-law did not occupy the position of a servant, and was not liable to pay for board. That transactions of this kind between relations stand on a different footing from those between persons who are not bound to each other by such ties. In the latter case the law may, in the absence of special circumstances, imply mutual promises to pay, while in the former it will not.* APPEAL from a judgment in favor of plaintiff, entered on the report of a referee. S. E. Filkins, for the appellant. Tucker & Bowen, for the respondent. Opinion by GILBERT, J. Judgment affirmed. Case 1 d 73 AD 590 JOSEPHINE LADUE, APPELLANT, v. ALBERT S. WARNER, Trover RESPONDENT. Declarations of former owner of property — when not admissible. This action was brought by the plaintiff to recover the value of certain articles of personal property, alleged to have been converted by the defendant, who claimed to own the same by virtue of a bill of sale from the former husband of the plaintiff. Upon the trial, in order to establish the title of the husband to the property, the referee allowed his declarations to be given in evidence, * Robinson v. Cushman, 2 Den., 152; Williams v. Hutchinson, 3 Coms., 312; S. C., 5 Barb., 122; Sharp v. Cropsey, 11 id., 224; Wilcox v. Wilcox, 48 id., 327-387. |