UTICA, Pearsall Post. Had Hewlett offered to prove that the locus in quo was a public highway, and that he was simply engaged in repairing it July, 1838. as such, under orders from the town commissioners, I think the proof should have been received. The objection to that on the part of the plaintiff is, that the locus in quo having become a public highway by dedication, its working and repair, if allowable at all, belonged to those who used it, and not to the commissioners; that to warrant the interference of the town authority, it must have been recorded. That certainly is not a universal requisite; for the statute itself places roads, which were used 20 years next preceding 1797, though not recorded, on the footing of those which are. 3 R. S. 253, § 82. We think a road dedicated to the public, and accepted by the commissioners, may, and must be repaired in the ordinary way. The point was directly resolved in State v. Campton, 2 N. H. Rep. 513, on full consideration; and in England, it is well settled, that the parish, (which for this purpose answers to our town,) is prima facie bound to repair a public road in all cases; and that if the duty lie upon any other, some special reason should be shown. Woolr. on Ways, 76, and the cases there cited. Ashurst, J. in Rex v. Sheffield, 2 T. R. 106, 111. There may be an objection to a commissioner interfering personally, and not by an overseer; but we need not inquire farther of his power over the premises as a highway, for he did not come to it as being a highway; his proposition at the outset was to prove it a public landing place, and place of deposit; and that the commissioners met and determined to regulate, repair, and alter it as such, and that he was acting under their determination. On the judge rejecting that evidence, he offered to show in addition, that the place was a highway. He was there without any order to work it as such, and comes back therefore to the rank of a private person. No power existed to make the order in respect to a public landing place or depot, to be made out by prescription or custom; for we have seen that none such can exist, and none other was offered to be shown. In short, the landing and depot were the ground on which the defence turned in both causes. They were allowed as VOL. XX. 18 UTICA, July, 1838. Pearsall V. Post. a defence in Pearsall v. Post, where the verdict was for the defendant, and in which there must be a new trial. In Pearsall v. Hewlett, the defence was disallowed, and a verdict found for the plaintiff, and therefore in that cause, a new trial should be denied. Ordered accordingly. END OF JULY TERM. THE MAYOR, &c. OF THE CITY OF New-York vs. STONE and others. Under the act subjecting the city of New-York to the payment of damages occasioned by the destruction of buildings by order of the Mayor, to prevent the spreading of a conflagration, no one but owners or persons having an estate or interest in the building destroyed are entitled to claim damages. An owner or lessee who has goods on hand as a factor or commission mer. chant, and has a lien upon the same for charges or advances, may claim damages to the amount of his lien; but he is not entitled to claim the value of the goods for the benefit of the owner. A person having goods stored in a building destroyed, of which he is not a tenant or occupant, is not entitled to be a claimant under the act. It is no bar to a claim that the party asking an assessment had effected an insurance upon the property destroyed, and has received moneys on such insurance. Interest upon the value of the goods lost, is a proper item in the estimate of damages. THIS case came before the court on a return to a certiorari made by the common pleas of New-York, to review the proceedings had in that court for the purpose of assessing the damages sustained by the defendants in error in ALBANY, October, 1838. V. Stone. consequence of the destrnction of a building of which they were lessees by order of the mayor of New-York with the Mayor, &c. concurrence of two of the aldermen of the city, by virtue of of New-York. the powers conferred upon him by the 81st section of the act particularly relating to the city of New-York, 2 R. L. 368, during the great fire in that city, which commenced 16th December, 1835. The return showed, 1. A precept issued by the mayor commanding the sheriff to summon a jury to inquire, &c. 2. An inquisition of the jury finding that the defendants in error were lessees of a building destroyed, and assessing their damages at a certain sum. 3. An affidavit of the counsel of the corporation detailing the facts elicited on the inquiry, as that the defendants in error had at the time goods in store to the amount of $225,743 70 of which goods a part only amounting in value to $4,586 52 belonged to them, and the residue was held by them as factors or commission merchants, and that a portion of the goods belonging to them to the value of $1614,80 was saved; that the goods in the store at the time of the fire were insured to the amount of $106,500 on policies of insurance, of which sum $60,960 had been paid by the insurers, and received by the defendants in error. 4. An agreement that the assured should pay over to the insurers such proportion of the damages which should be recovered in their proceedings as should belong to them; and 5. A rule of the common pleas setting forth the inquisition and stating the filing of the affidavit of the counsel of the corporation, and then confirming the inquisition. There were two other cases brought up at the same time, in which the proceedings were the same as above stated, except that by one of the inquisitions damages were assessed and allowed to several individuals without stating the interest they had in the building destroyed, or the nature of the loss sustained, as thus "and they further up"on their oaths say that George Meyer having an in"terest in the said premises Number 57 Water-street, has "sustained damage by the means in the said writ mention❝ed over and above his costs and expenses of the said inquisition and proceedings to the amount of $4345,38, be 66 66 October, 1839. Mayor, &c. V. Stone. "sides his expenses incurred about the said inquiry, assess- ALBANY, "ment and proceedings to be taxed and allowed." In ref. erence to which assessment in favor of George Meyer the counsel for the corporation in his affidavit stated, "that a of New-York. "claim was also made by and on behalf of George Meyer for “merchandize destroyed in the cellar of the said building "No. 57, Water-street, valued at $4,959,50, at a credit "price; in relation to which claim it appeared in evidence "that the whole of the said merchandize belonged to per"sons in London, and had been consigned to the said George Meyer for sale; and that the same was deposited "by him on storage with the said Lansing and Monro in "the said cellar." The counsel for the corporation further stated in his affidavits in one or other of the cases, that the judge presiding at the taking of the inquests charged the jury in substance: that a lessee of a building destroyed was entitled to recover the full value of goods lost by such destruction, although he held them merely as a factor for sale on commission, because a commission merchant, having goods on hand for sale, upon which he had made advances or had a lien, was in law deemed the owner of the goods and was entitled to recover the full value thereof in his own name, subject only to an account with his principal; that the circumstance of the goods having been insured, and of moneys having been received on such insurance, was not a ground of diminishing the recovery inasmuch as the assurers had a right by substitution to indemnity in the name of the assured under the act; that persons having property stored in a building, although not tenants or occupants thereof, were protected by the act equally with owners, lessees or occupants, and might be claimants under the act; that it made no difference whether the property belonged to the claimant in his own right, or was held by him as a consignee, commission merchant, factor or agent, and that the jury would be warranted in allowing interest upon the value of the goods destroyed: which charge was excepted to by the counsel for the corporation. The jury in making their assessment followed the instructions of the judge. The causes were argued by |