
    Josiah L. Dow, plaintiff in error, agt. Jonathan Kent, defendant in error.
    
      Judgment affirmed.
    
    John Van Burén for plaintiff in error; M. Schoonmaker for defendant in error
   This was an action of trespass commenced in a Justice’s Court by Dow against Kent, for alleged injuries to the plaintiff’s posts, fences, sidewalk and ground, adjoining the public highway; in plowing and scraping away the ground, &c.; in the village of Milton, Ulster county. The defendant pleaded the general issue, and gave notice (in substance) that he acted as overseer of the highway, and that whatever was done in the premises was done by virtue of his office, and was what the law required to be done.

On the trial,-the plaintiff, was allowed, after objection, to give evidence that the work done by defendant, had not been done in the manner best adapted to the object in view; that turnpiking the road in front of plaintiff’s land was not the best way to improve it; and that the sluice made was not necessary. Also, that defendant’s fence was nearer the road than the church fence on the south, adjoining.

Judgment was rendered for the plaintiff before the justice (jury trial). On certiorari the Ulster Common Pleas affirmed the judgment. On writ of error to the Supreme Court, the judgment of the Common Pleas was reversed. Beardsley, J. said “ that in order to recover, the plaintiff was bound to prove that such trespass had been committed by the defendant. But this could not be done by showing that turnpiking the road was not the best way of improving it, or that the defendant’s fence was out of position. Those were matters quite foreign to the case in hand. They were calculated to carry the jury away from the question before them, and were on no principle admissible as evidence in the case. On this ground, without going further, the judgment should be reversed.” Not reported.  