We do not perceive any evidence, on which the jury were authorized to find a verdict against the defendant, provided he had been working under the directions of the commissioners of highways, instead of the plank road company. It was held in Benedict v. Goit, (3 Barb. Sup. C. Rep. 469,) that the plank road company were in the place of the commissioners, in their right to repair and construct a plank road on the site of a public highway. And in Graves v. Otis, (2 Hill, 466,) it was decided that no action lay for cutting down an eminence in a public street and sidewalk in the village of Watertown, by which the plaintiff’s store was left six or eight feet above the level of the sidewalk adjacent to the premises. The injury in such- a case was damnum absque *340injuria. The principle of the case of Benedict v. Goit, has been several times confirmed by the courts of this state, and by the supreme court qf Massachusetts, in the case of Babcock v. The Western Railroad Corporation, (9 Metcalf, 553.)
It is, however, unnecessary to rest the case on this ground, because there is another defense that we regard as conclusive; A judgment had been recovered on the 28th day of March, 1851, by the same plaintiff against the plank road company, of which the defendant in this suit was the agent, for an injury which was admitted by the counsel to constitute the same cause of action with that in this suit; and that judgment was paid to the ■justice before the commencement of this suit. Ho dissent was proved, by any legal evidence, and no directions not to receive the amount of the judgment had been given by the plaintiff, when the justice received the amount of the judgment. The question then arises as to the power of the justice to receive the money, and the effect of so receiving it. I deny the right of the plaintiff to refuse to receive the money, and to maintain this action on the ground that he has a right to elect “ de melioribus damnis.” A tender to an agent, clerk or servant authorized to receive money, is as valid as a tender to the principal. (20 Wend. 436. 1 Camp. 478. 5 Taunt. 307. 1 Esp. Rep. 350.) And a tender is good, to an attorney with whom a demand has been left for collection. (18 John. 110.) A justice is authorized to issue execution on a judgment without any express direction from the plaintiff. The language of the act is “ upon any judgment being rendered before-a justice he shall issue execution as hereinafter provided.” And the statute then enacts that he shall issue an execution in some cases in 30, in others in 90 days-, and in other cases immediately.- (2 R. S. 175, § 130.) Again, a defendant has a right to tender the amount of the judgment, and relieve himself from the judgment,-, and to prevent the issuing of an execution,- as soon as- it is recovered. To whom shall he make the tender 7 The plaintiff does not know the amount of the costs, and may not know, or remember, the amount of the damages; and the defendant must of necessity. tender and pay to the justice. Should he make the *341tender to the party himself, the plaintiff would refer him to the justice, just as a party would refer a defendant to his attorney who had the demand in charge. The fact that the justice has a right to issue execution and the constable is bound to return it to him, is also conclusive as to the right of the justice to receive the amount of the judgment in satisfaction. I say nothing of a case where, when the judgment is rendered, the plaintiff gives notice to the defendant, and to the justice, that he intends to bring another suit against other parties, and to take his election of the damages; for the reason that it is not necessary to decide upon the effect of such a notice. But, the money was paid in this case by the defendant and was received by the justice, in perfect good faith, and in utter ignorance of any design to bring another suit against the present defendant or any other party.
[Jefferson General Term, July 4, 1853.Gridley, W. F. Allen, Hubbard and Pratt, Justices.]
Again; the receipt of parol evidence of the contents of the plaintiff’s letter, against the objection of the defendant, without proof of its loss or destruction, was error. Without that evidence, the case is destitute of any evidence at all that the plaintiff ever dissented to the receipt of the money, or manifested the least disapprobation of the act of payment. Now the jury may have held the dissent contained in that letter as operative to prevent the payment being a satisfaction of the judgment; though the letter was written and received after the payment was made. It is quite difficult to perceive how they could have found a verdict, on any other principle. For without that letter there was, in proof, a payment of the judgment to the justice in the ordinary way; and that without any dissent on the part of the plaintiff; which was clearly a satisfaction of the judgment.
Judgment reversed.