Schaffner v. Reuter.

she was in such a case a competent witness. (Code, § 399. Marsh v. Potter, 30 Barb. 506. Babbott v. Thomas, 31 id. 277. Barton v. Gledhill, 12 Abb. 246. 13 id. 13. Shoemaker v. McKee, 19 How. Pr. R. 86.)

Under the facts found by the referee, which were warranted by the evidence, I think the referee was also warranted in the conclusions of law at which he arrived.

1. The husband received from the wife a sum of money belonging to her absolutely, upon a parol promise to pay the same, at a time when the plaintiff's debt was not in existence. 2. This parol promise, though void at law, was good in equity, and the receipt of the money under such circumstances formed an equitable consideration for the repayment of the money, or for a settlement of real estate of equivalent value, and for a post-nuptial contract carrying such an arrangement into effect. (Garlick v. Strong, 3 Paige, 440, 452. Taylors v. Moore, 1 Rand. Rep. 563. Atherly on Mar. Set. 161. 2 Kent's Com. 166. Partridge v. Havens, 10 Paige, 618, 624, 625. Wickes v. Clarke, 8 id. 161, 167. Gage v. Dauchy, 28 Barb. 622.)

Borst v. Corey (16 Barb. 136) is not in conflict with these authorities; for in that case the husband was indebted and insolvent at the time, and the settlement was without any cotemporaneous or antecedent consideration, either legal or equitable, to support it. 3. The conveyance made to the wife by the husband was no more than a just equivalent for the money borrowed of her, was apparently free from actual fraud, and though executed after the plaintiff's debt accrued, was supported by the antecedent equitable obligation and consideration, and in legal effect related back to that period. There was therefore no error in the decisions of the referee, and the judgment entered upon his report must be affirmed with costs.

[ALBANY GENERAL TERM, May 5, 1862. Hogeboom, Peckham and Miller, Justices.]

37 50 121a 430

37b 50 6ap105

THE TRUSTEES OF THE VILLAGE OF JORDAN VS. OTIS.

A way may be dedicated by the owner of land as a public highway, by an immediate act of dedication, and it will become a legal highway whenever it is laid out as such by the constituted authorities, who are charged with the duty of laying out highways.

But in this state the responsibility of making highways is devolved upon the commissioners of highways; and a road opened by an individual and used by the public less than twenty years, is not a highway within the meaning of the highway acts, until it has been laid out as such by the commissioners of highways or other public authorities upon whom the duties of commissioners of highways are devolved by law.

Repairs made upon such a road, by an overseer of highways, do not constitute a valid acceptance, for want of authority in him to bind the town. Whether the owner can recall the dedication, before it is authoritatively accepted? Quare.

HE defendant in this action, in the spring of 1861, fenced

THE

up a street in the village of Jordan, Onondaga county, called Water street, and this action was brought to recover a penalty of five dollars, imposed by statute, for such obstruction. The suit was brought in a justice's court. The defendant pleaded title, and the action was brought into this court, and tried by the court without a jury, at a circuit court held in the city of Syracuse in October, 1861. The court found for the plaintiff, and judgment was entered accordingly. The defendant appealed to the general term.

By the 23d section of the charter of the village of Jordan, (Laws of 1861, p. 154,) the village of Jordan was made a separate road district, and the trustees of the village of Jordan were made commissioners of highways therein. The road in question was plotted out in 1845, by Isaac Otis, the father of the defendant, and opened and traveled through most of its length, until 1860. The defendant came into the possession of the premises in 1847 or 8. In 1860 the pathmaster repaired it, so that the public could pass through it, and soon after, in the same season, the defendant shut it up. For this act of the defendant the trustees brought this action. An objection was taken that the suit should have been brought

The Trustees of Jordan v. Otis.

in the individual names of the trustees; but the objection was overruled.

The following are the findings of fact and law, as drawn up and printed in the case.

First finding. That the premises upon and over which the defendant placed the obstruction complained of, was by the grantor dedicated to the public many years before the commencement of this suit, and that such dedication was subsequently recognized by the acts and declarations of the defendant in this suit.

Second finding. That the dedication was, prior to the commencement of this action, accepted by the public by repeated and long continued use of the premises, or some part of them, as a public highway for travel and passage over the same, and by the same having to some extent been worked and repaired by the public authorities of the village of Jordan.

To that portion of the second finding which declares "that such dedication was accepted by the public," the counsel for the defendant in due time excepted.

Third finding. That the defendant obstructed the use of the said highway by building and maintaining a fence directly across the same, in such a way as wholly to prevent the use of the same as a highway by the public.

Fourth finding. That the premises claimed in the complaint in this action to be a public highway, have not, nor has any portion of them, been laid out as such by the public authorities.

Fifth finding. That the only work or repairs purporting to have been bestowed on any part of said premises as a public highway, consisted in the leveling down of the south portion of the foundation of the slaughter house erected by Carson & Wilson, by Elijah F. Wright, the pathmaster, in 1860, so as to admit of public travel over the portion thus leveled.

Sixth finding. That the only authority which Weed had to cause work or repairs to be made on said premises as a

The Trustees of Jordan v. Otis.

highway, consisted in a resolution of the board of trustees of said village, in general terms, committing to the trustees of each ward the care of the highways in the ward in which they resided, and as one of the trustees who were commissioners of highways by the act of incorporation.

Seventh finding. That in the year 1845, and immediately upon the giving of the deed by Isaac I. Otis to Carson & Wilson, they erected a slaughter house on the premises conveyed to them, the foundation of which extended on to the north side of the land reserved in their deed for a road, and to within about one rod of the south side of the piece thus reserved; and that no portion of the premises covered by such foundation was ever used as a public highway, until the south portion of said foundation was leveled by the pathmaster in 1860.

Eighth finding. That a considerable portion of the north side of the land reserved as a road in the deed from Isaac Otis to Carson & Wilson, and inclosed in said foundation, remained covered by said foundation until May or June, 1861, and which portion thus remaining so covered has never been used or worked as a public highway.

Ninth finding. That at the time of the acts and declarations of Isaac Otis constituting a dedication, as found by the court, there was no highway or public place west of the premises sold to Carson & Wilson, which the street or highway thus dedicated could intersect or terminate at, and the street thus dedicated terminated upon the premises of said Isaac Otis.

Tenth finding. That at the time of the giving of the deed by Isaac Otis to Carson & Wilson, there was no way of ingress or egress into and out of the premises of said Otis and west of the premises so conveyed by said Otis, except through these premises thus conveyed, or through the space thus reserved as a road in said deed.

From the facts as above found, the court found as conclusions of law:

The Trustees of Jordan v. Otis.

1st. That the premises alleged in the complaint to be a highway, were dedicated to the public as a public highway by Isaac Otis. 2d. That the public accepted such dedication. 3d. That the plaintiff is entitled to recover the penalty of five dollars claimed in the complaint. To each of which findings the counsel for the defendant duly excepted.

Wm. Porter, for the appellant.

D. Pratt, for the respondent.

By the Court, MORGAN, J. This action is brought by the trustees of the village of Jordan, against the defendant, to recover the penalty of five dollars for obstructing a highway. Section 102 of the highway act (1 R. S. 521) declares that whoever shall obstruct any "highway, or shall fill up or place any obstruction in any ditch constructed for draining the water from any highway, shall forfeit for each offense the sum of five dollars." And by § 131, (Id. 525,) the forfeiture must be "recovered by the commissioners of highways of the town in which the offense shall be committed; and when recovered, shall be applied by them in improving the roads and bridges in such town."

The village of Jordan was made a separate road district, by chapter 82 of the laws of 1861, (§ 23, p. 154,) and the duties of commissioners of highways "devolved upon the trustees of said village." There is great doubt whether the action is properly brought in the corporate name of the village. But as this objection was not pressed on the argument, it will not be considered in the decision of the case.

The principal question arises out of the difficulty of determining whether the alleged highway was, at the time of the obstruction, a public highway within the meaning of the revised statutes, containing "regulations and penalties concerning the obstruction of highways, and encroachments thereon." (1 R. S. 521.) By section 100 of the act rela