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 re*459collection. 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.