
    Jackson, ex dem. Reiley and others, against Livingston.
    NEW-YORK,
    Nov. 1808.
    y a party con„ reiving himself aggrieved by the award of commissioners llas given them notice of his dissent, within ¡"smfficient^to prevent his be-by^th^award, whether the commissioners have entered such dissent in their book of awards, or not, What amounts to such notice is a fact for the jury to decide.
    THIS was an action of ejectment, for á part of lot no. á. in the town of Hector, in the county of Seneca. The cause was tried at the Seneca circuit, on the 23d june, ’ J ’ 180/, before Mr¡ Justice Tompkins.
    
    At the trial, the lessors of the plaintiff produced the book of awards made by the commissioners, appointed to ... / . , , , . , settle disputes concerning titles to land m the county oi Onondaga, and which had been duly filed in the office of the clerk of the county of Cayuga, pursuant to the directions of the act. By this it appeared that the commissioners awarded the lot in question to John Lawrence, one of the lessors of the plaintiff, in fee, on the 12th March, 1801 ; and their award was duly entered under their hands and seals in their book.
    The defendant offered in evidence a dissent in writing of Birdsey Norton to the award of the commissioners,■made the 28th day of August, 1802, on which was indorsed “ filed October 1st, 1802 5” and the clerk of Cayuga, who produced the paper, testified that he found it on the files when he came into office, in January, 1804, when the papers were delivered to him by the former clerk ;• that there were two bundles of dissents on file in the office, one of which was deposited by the clerk of the commissioners, and a note of the time of their being received was entered in the book of awards, which he had compared and found to be correct; the other bundle of dissents was received by him from his predecessor in office, and no note or entry of them was made in the book of awards.
    
      Vincent Matthews, esq. one of the commissioners, testified, that an indorsement on the paper containing the dissent of Norton, in the words following, “Birdsey Norton's dissent from an award of lot no. 3. in Sector, 28th August, 1802,” was in the hand-writing of James LLmott, esq. the other commissioner ; that all the dissents received by the commissioners were retained by them until they filed the book of their awards, and were all entered in the book of awards, and delivered with the book to the clerks of the counties of Cayuga and Onondaga respectively.
    It further appeared, that there was no entry or note of any dissent from the award of lot no. 3. in question, in the book of awards.
    
    The counsel for the plaintiff objected to the writing or paper containing the dissent of Norton, being read in evidence ; and it was rejected by the judge. The defendant then offered to prove that Norton, at the time of the award of the commissioners, was in possession of the premises in question, and to deduce a regular title and continued possession from the first patentee to himself; but this evidence being objected to, was excluded by the judge; and the jury, under his direction, found a verdict for the plaintiff.
    The defendant moved for a new trial,
    1. Because the evidence of the dissent ought to have been admitted,
    2. Because the evidence of the title offered by the defendant ought not to have been rejected.
    
      E. Williams, for the defendant.
    The lessors of the plaintiff found their claim on the award of the commissioners, and have shown no other title j but the defendant, having entered his dissent, and regularly filed it with the commissioners, cannot be bound by their award. The act provides, that any person conceiving himself aggrieved by the award of the commissioners, may, within two years, give notice to the commissioners of his dissent from the same, or file such dissent in the office of the clerk of the county of Onondaga. When the county of Onondaga was after-wards subdivided, and a part thereof erected into a new county, by the name of Cayuga, it was the practice to file the dissents in the office of the county in which the lands were situated. It was enough that notice of this dissent was given to the commissioners, within the time prescribed, and whether they entered it in their book or not, the omission cannot prejudice the defendant, who has complied with all the directions of the act. As the defendant was in possession at the time, it was the duty of the plaintiff to bring his action within three years, though the award was in his favour,
    Mumford, contra.
    The only question is, whether the defendant has filed his dissent agreeably to the directions of the act, for the party in whose favour the award is made is not bound to bring an action unless a dissent has been filed. The act expressly directs that it must be filed in the county of Onondaga, It cannot be filed elsewhere. Though there is an indorsement in the hand-writing of one of the commissioners, yet he has not marked it, as filed with him ; nor does it follow that notice was in fact given to the commissioners according to the act.
    
      
      
         See 3d section of the act, passed 24th March, 1797, 20 sess. ch. 51. (Greenleaf’s edition of the laws, v. 3.p. 425.)
    
   Van Ness, J.

delivered the opinion of the court. The evidence of the dissent of B. Norton from the decision of the commissioners, offered at the trial, ought to have been admitted. Whether the dissent mentioned in the case, was delivered to the commissioners or not, was a matter of fact proper to be left to the jury; and it is agreed that if it was delivered to them, the title to the lot in question is now open to investigation, The party dissenting is ref quired to give notice thereof to the commissioners, or to file his dissent in the office of the clerk of the county of Onondaga; and in case he adopts the former course, the commissioners are required to make an entry of it in their book of awards, If such notice has been given to the commissioners and they have not made the proper entry, the party ought not to be prejudiced by their omission. He was not to see that the entry was made, and his rights cannot be impaired by the non-performance of an act by a third person over whom he had no con troul, and which act he was under no obligation to see executed, The dissent in question was filed in the clerk’s office of Cayuga as a public document; the indorsement on it was in the hand-writing of one of the couimissioners, and must, therefore, have been in his possession, and the contents of it known to him. These facts uncontradicted and un-? explained, afford strong evidence of a notice' to the com-? missioners, by Norton, of his dissent from their decision. To avoid this conclusion, the plaintiff relies on the testimony of Mr. Matthews, one of the commissioners, who says, that all the dissents delivered to them, were en? tered in the book of awards. This must, however, be understood, as the witness probably intended it should be, with some limitation. He is speaking of a transaction, all the details of which could not be perfectly in his recollection. The most that can be made of his testimony is, that it was the general practice with the commissioners to make an entry of the dissents delivered to them; but that in some cases there may have been omissions. Thus explained, it would not materially affect the testimony on the other side. It has been contended, that after the county of Cayuga was erected, this dissent might be filed in the clerk’s office of that county, but it is not requisite that we should now express any opinion on that point.

The Court are of opinion, that upon the first ground, there ought to be a new trial, with costs to abide the event of the suit.

New trial granted.  