Porter v. Waring. which it was employed in the covenant in question depends upon the proof given upon the trial. The word of itself has no strict legal interpretation, and its meaning and import must be governed by facts showing the limits and extent of the same in the street where it is located. And although courts may take judicial notice of what is usually within the knowledge of most men, as perhaps of the well known and admitted fact that streets in the city of New York are public highways, and of other matters which are equally notorious and well understood, yet it by no means follows that they can take notice of the width of streets or of sidewalks, or of any fact connected with the same not generally understood, nor of the ordinances of the corporation which establish the same, define their width, and prescribe and regulate their limits and extent. These details are to be proven by competent evidence, and cannot within any well settled rule established by the decisions of the courts, be considered as embraced within the knowledge of a judge upon a trial without testimony to show the actual state of the facts. If the court could take judicial notice of the ordinances of a municipal corporation, it would involve the consideration of all the numerous enactments, whether printed or otherwise, which the common council have adopted which relate to the subject of the controversy, and the existence of many of which might be entirely unknown to the parties or their counsel. It would open the door, in many cases, to mere conjecture, and involve an inquiry as to local enactments, the time when they took effect, the priority of the same, and their application to the case in litigation, which it would be difficult to dispose of without proof, and which are not properly embraced within the ordinary scope of judicial knowledge in the determination and trial of cases. The authorities cited by the appellant's counsel do not extend the doctrine stated so as to include knowledge of facts so remote and indefinite as to require extrinsic evidence, and which are dependent upon municipal regulation, and the action of the legislative power of local corporate authorities. No case has been cited which establishes the doctrine that a judge upon a trial has a right to assume that such ordinances are to be regarded as evidence, and to exercise a controlling weight, without proof of the same, in the disposition of cases. But even if they could be so considered, there are difficulties in rendering the ordinance sought to be introduced and the certificate of the street commissioner effective in proving facts which aid the plaintiff's case, without extraneous evidence to show the application to the case presented in the record before us, which cannot be overcome or surmounted. The evidence now offered to be read provides for the width of sidewalks in all streets which "are paved or shall hereafter be paved or repaved" between the line of the streets and kennels, and declares that in all streets sixty feet wide, the sidewalk shall be of the width of fifteen feet, and in streets of less or greater width, that the sidewalks shall be of a different width. The provision referred to could not be applied in the case at bar until the court is informed by sufficient evidence that Thirtysixth street, between Third and Lexington avenues, was actually paved before this action was commenced; what the width of said street actually was, and where the kennels were located. How can it be determined that the ordinance applied, without evidence to show that these conditions were complied with? Who can tell the width of the sidewalk until the width of the street is shown? As there was no proof of these material facts, the evidence in question would be of no avail to the plaintiff. As to the certificate of the superintendent of street im Porter v. Waring. provements, it may also be remarked that there is no authority cited which renders it competent evidence. For the reasons already stated, the reading of the ordinance and the certificate upon the argument at the general term and upon this appeal, would be unimportant and would not aid the plaintiff's case, for as we have seen, neither of them could affect the merits or obviate the defect in the plaintiff's testimony. But even if they were otherwise competent, the omission to introduce them upon the trial cannot be supplied by their presentation to the appellate tribunal upon the argument of the case, and the rule which sanctions the introduction of record evidence upon an appeal, has no application to the ordinances of a municipal corporation, and a certificate of the character of the one presented under the circumstances of this case. None of the authorities cited sustain the position that such papers may be read upon the hearing of an appeal, and it is usually in cases where record evidence has been imperfectly proved on the trial, or where it is evident that the record itself cannot be contradicted or varied, so that a new trial would not alter the case, that such record can be read to supply the deficiency, and then only in support of the judgment. In Stilwell v. Carpenter (62 N. Y. 639), it was held, that while records are sometimes received on argument in an appellate court to cover an omission through inadvertence of proof on the trial, this is only permitted to uphold the judgment, not to reverse it, as a reversal is only for error committed below, and there can be no error in deciding contrary to a record not produced. This case is directly in point, and decisive of the question discussed. The provision of Laws of 1832, chap. 158, which authorizes ordinances of the common council of the city of New York to be read in evidence in all courts, relates to their introduction upon a trial in the various Stilwell v. Carpenter. courts, and not to their being in an appellate tribunal. In any view which may be taken of the subject, we think it is entirely plain that the papers mentioned could not upon any legal ground be read upon the argument. As the case stood, the several requests to the court to find by the appellant's counsel were not material, and the refusal of the judge in regard to them was not erroneous. The conclusions arrived at in reference to each of the questions considered, dispose of the whole case, and in that aspect it is not important to consider some other points made, to which our attention has been directed. There was no error upon the trial, and the judg ment must be affirmed. All the judges concurred. S.C.62 my 639 STILWELL v. CARPENTER. N. Y. Court of Appeals; September, 1875. ASSIGNMENT.-PARTIES.-EVIDENCE.-VERIFIED ANSWER, HOW RE- Where a non-negotiable obligation,-e. g., a judgment,—is taken in 639. * A memorandum of the decision in the text appears in 62 N. Y. Stilwell . Carpenter. whether the third person could have maintained an action upon the obligation. The former equity rule, making a verified answer denying an allegation in the bill equivalent to testimony requiring two witnesses to rebut it, is not applicable under the Code. The parties, now having the right to offer themselves as witnesses, оссиру the position of other witnesses, and where the testimony of either conflicts with that of another witness, though there be no other testimony upon the point in dispute, the preponderance is to be determined by the tribunal.* Records are sometimes received on the argument of an appeal to cure an omission, through inadvertence of proof at the trial; but this is permitted only to uphold a judgment. The court cannot reverse, if no error was committed below. † To rely on a fact proven, and urge it as the ground for the judgment of the court, without disclosing another fact known to the party which would wholly avoid its effect, is a concealment material to the question of fraud in obtaining a judgment, in case the fact withheld is not known to the adverse party. A sale on execution after a release of the judgment, given by the equitable owner of it, is without authority; and one privy to the release acquires no title by purchasing at the sale. Nor does his assignee, unless he can show that he is a bona fide purchaser for value, and establish an estoppel against the judgment debtor. A witness, though uncontradicted and unimpeached, may be disbelieved on the ground of intrinsic improbability. Where one, claiming to be a bona fide purchaser testified, in general terms, to his good faith, but his cross-examination drew out statements showing his conduct unusual, imprudent, and inconsistent with the purpose claimed by him ;-Held, that the judge did not err in discrediting his testimony, although uncontradicted and unimpeached.‡ * But in such case the question is one for the jury, unless there is such a preponderance of testimony against the party as would take the case from the jury were the party only a disinterested witness. It seems now to be generally conceded that the court should not take the case from the jury solely on the testimony of a party. Hodge v. City of Buffalo, 1 Abb. N. C. 356; Miller v. Ins. Co. of North America, Id. 470. To the same effect, Porter v. Waring, p. 230 of this vol. This rule becomes especially important on questions like that in the text, where the witness testifies on a question of his own intent. |