Howell v. Ruggles et al.

Howell v. Ruggles et al. Proof of charter of New York The charter of the city of New York may be read in evidence, from a volume printed by authority of the common council, subsequently to the act of 1832 ; hut it is primdfacie, evidence only. Appeal from tbe general term "of the Supreme Court, in the second district, where a decree in favor of the plaintiff, in a foreclosure suit, had been affirmed. This was a suit to foreclose a mortgage for $15,000, with interest, made to the plaintiff by James L. Voorhees, on the 1st May 1844, upon a number of lots in the city of Brooklyn,- including within the boundaries thereof the shore of the East river, between high and low water mark. *One of the defendants, Samuel B. Ruggles, by his answer, denied that Voorhees had title to the land between high and low water mark, and averred that the title to the same was in the corporation of the city of New York, under whose title he claimed as mortgagee. On the trial, before Mouse, J., the defendant offered to read in evidence the charter of the city of New York, from a volume, known as “ Kent’s Charter,” printed in 1836, by authority of the common council. This wras objected to, as secondary evidence; as not within the act of the 17th April 1832; *and as not competent to prove a grant of land. The court sustained the objection, and the defendant excepted. The plaintiff had the usual decree of foreclosure, declaring that Voorhees, at the time of the execution of the mortgage, was seised in fee of the mortgaged premises, including the lands between high and low water mark; which having been affirmed at general term, the defendant, Ruggles, took this appeal. Marvin, for the appellant. Wight, for the respondent. [MAJORITY — Foot, J.] Foot, J. The appellant read in evidence a certificate of the clerk of the common council of the city of New York, annexed to the volume containing a copy of the charter thereof, usually, known as “ Kent’s Charter” (as in the same volume are published the notes of the late Chancellor KeNT upon the charter), in which certificate, the clerk stated, that the volume contained “a copy of the charter, printed by authority of the common council of the city of New York.” The appellant then offered to read the charter in evidence from said volume. This was refused by the court; and it would seem on two grounds: 1. Because the volume was *printed after the statute of 17th April 1832 was passed: 2. Because the charter was offered in evidence to show title to real estate. We think neither ground tenable. Although the second section of the act mentioned (Laws of 1832, p. 251), speaks of reading the charter “in evidence from the volume,” &c.; yet, the legislature evidently did not intend to designate any volume in particular, from which the charter should be read, but on' the contrary, intended to allow it to be read from any volume “printed by authority of the common council.” Such was the character of the volume from which the appellant in this case offered to read the charter. Nor does the act giving permission to read the charter in evidence from such a volume, make any distinction in regard to the purposes for which it is to be read; it allows it to be read, generally, for all and every purpose. • The rights of parties are not jeopardied by_ such permission, for the statute declares all evidence admitted under it to be primé facie only. Decree reversed, and new trial awarded.