text:
    WHITMAN CLARK and others, Respondents, v. THE VILLAGE OF DUNKIRK AND GEORGE F. SEYBOLT, Appellants.

      Action to mente assessment — when it can be maintained — allegations of complaint in — It cannot be brought for relief against personal tax — What errors will amid an assessment.

    Whenever an assessment is invalid, and such invalidity is shown only by matters dehors the record, which in itself is in all respects regular, and within the power and jurisdiction of the authority laying the same, an action in equity may be maintained by any one, upon whose real estate an apparent lien- has been created by tbe assessment, in behalf of himself and others in like situation who may come in and contribute, to have tbe same canceled, and to restrain the enforcement thereof.
    To justify such an action, it must be alleged in the complaint that the assessment is regular upon its face, and apparently in accordance with the provisions of the charter authorizing it.
    Such an action cannot be maintained for relief against a mere personal tax oi assessment.

      Where, in. an action to set aside an assessment to defray the cost of constructing a sewer, it appeared that some of the land assessed was lower than the bottom of the sewer, that a portion of it could not be drained into it without a considerable expense and change in the surface of the lots, that a portion could not drain into it without crossing the land of third persons, and that certain lands were assessed at a uniform rate, without regard to the distance they were situated from the sewer, or the expense of connecting therewith, held, that the assessment should be set aside.
    Appeal from a judgment in favor of the plantiff, entered upon the report of a referee.
    This action was commenced to enjoin the collection of an assessment imposed for the construction of a sewer in the village of Dunkirk, and to have the same declared illegal and void.
    The referee found, among other things, that the village of Dunkirk, a duly incorporated village, in pursuance of the charter of said village, ordered the construction of a sewer in Lion street, between Fifth street and Lake Erie; that a sewer was constructed in said street as provided in the said charter, and accepted by said village on the 22d day of November, 1875; that the cost and expense of constructing said sewer was $9,118; that, on the 22d day of November, 1875, assessors were duly, appointed by said village to make a local assessment on the property benefited by the construction thereof; and that their assessment was made and filed with the clerk of said village, and that said village thereafter confirmed the same;' that said village, in pursuance of its charter, caused'a warrant to be issued and annexed to said assessment roll and delivered to the collector of said village, George F. Seybolt, one of the defendants, who, in pursuance thereof, proceeded to collect the said assessment so made; that all of the proceedings of said village taken for the construction of said sewer, and the assessments of the costs and expenses thereof, were regular, and no defect existed upon the face of any of the proceedings; and no irregularity was manifested on the part of said village or said assessors in constructing said sewer and making said assessment, so far as appeared from the record and proceedings of said village relating to the same, or from the proceedings of said assessors ; that said assessment was a lien upon the real estate of the plaintiffs, as well as upon the real estate of the other persons named in said assessment; and the said real estate was liable to be sold for the non-payment of said assess-meat; section 17 of title 19 of chapter 479 of 1867 (Tillage charter) makes the certificate of sale evidence that such sale was regularly made according to the provisions of said act; that the said assessors, in making their assessments upon the property alleged to be benefited by said sewer, did not take into consideration the value of the buildings and improvements upon the lands so assessed (amounting to over $100,000 in all), and assessed the lands exclusive of such improvements; that a portion of the lands assessed on the easterly side of Ruggles street, southerly from Wright, and on the easterly side of Griswold, southerly from Talcott, cannot be drained into sewer without considerable expense and without changing the surface of the lots.; that the land on the east and west of Lion street, between Front and Second streets, is, much of it, lower than the bottom of the sewer, and incapable of being drained into said sewer; that the property known as the Phillippbaar property, situated on East Third street, is in no wise benefited by said sewer; that the property assessed as being benefited by said sewer was not and is not benefited by the sewer; that on the north of Griswold street, as indicated on said map, is a brook running across Ruggles street and Railroad avenue ; that much the greatei part of the land on King, Griswold and Ruggles streets slopes toward said brook, and that the surface water in all said streets, at the time of the construction of said sewer, ran thi-ough said streets into said brook; and this has been the course of said water ever since said streets were opened and worked; that the individuals living on Ruggles street (and assessed to pay said assessment), and their grantors, have heretofore drained their lands from the rear of their said premises into said brook; that said brook abuts upon their premises, and that the inclination of the surface of the land and course of the water is toward said brook; that none of the persons living on the north side of said Ruggles street, between Talcott and. Wright streets, are benefited by the constructing of said sewer; that the natural course of the surface water in Smith and Reaver streets'and Lion street, south of Fifth street, has been into the creek known as Elk Street creek; that the surface water on these streets has, ever since the same were opened and worked, and until the construction of said sewer, run into said creek; that the greater portion of the surface water flowing in Smith and Beaver streets comes fi om Bennett road and Seventh street, and the property ol*. said streets is not assessed; that the water coming along Bennett road to Smith and Seventh to Smith has been diverted, to some extent, from its natural water-course; that the plaintiffs are not benefited by the construction of said sewer; and the referee found, as conclusions of law, from the foregoing facts, that plaintiffs were entitled to judgment in this action ; that said assessment be declared illegal and void; and that the plaintiffs were entitled to an injunction forever restraining the collection of said assessment and tax by the defendants, or either of them, or their or either of their officers or agents; and that the plaintiffs recover of the defendant, the village of Dunkirk, the costs in this action to be taxed; and judgment was ordered accordingly.

      Thomas P. Grosvenor, for the appellant.
    The legislature, in the exercise of its constitutional authority, having made the assessors the tribunal to decide questions of value and the like, and provided no appeal, its decision is final, so far as questions of judgment and discretion are concerned. ( Weaver v. Bevendorf, 3 Denio, 117; Buffalo and State Line B. B. Go. v. Supervisors of Erie Go., 48 N. V., 93; Yeomans v. Simmons, 14 N. T. Sup. Ct. [7 Hun], 469; Ma/rvim, v. Oity of Buffalo, 23 Barb., 166; People v. City of Boohester, 5 Bans., 144, Mullett, J.; Kilbourne v. St. John, 59 N. Y., 27; Zink v. City of Buffalo, 6 Hun, 611; Western Bail/road v. Nolam, 48 N. Y., 518; Susquehanna Bank v. Supervisors Broome County, 25 id., 314; Bows v. City of Chicago, 11 "Wallace [U. S.], 108; Kilbourne v. St. John, 59 N. Y., 25; Murrill v. Brooklyn, 3 Edward’s Ch., 421; Mooers v. Smedley, 6 Johns. Ch. 28; Mace v. Trustees of Kewburgh, 15 How. Pr., 161; Mayor of Brooktyn v. Merserole, 26 Wend., 132.) The referee should have granted the motions for nonsuit, as asked for at close of plaintiff’s case, for misjoinder of the parties plaintiff. The complaint and the evidence taken at the trial show that the plaintiffs named in the complaint have no common interest in the land affected by this assessment, but, on the contrary, own their lots in severalty. They cannot, therefore, join in a suit in equity to restrain the collection of this tax. (Bouton v. The City of Brooklyn, 15 Barb., 375;
      McGee v. Culter, 43 id., 240; 25 Conn., 232.) The defendants did not waive tbeir riglit to object to tbe improper joinder of parties by not demurring or objecting thereto in their answer. (Porter v Kingsbury, 5 Hun, 597; Simon v. Ganaday, 53 N. Y., 298; Palmer v. Pavis, 28 id., 242.) The fact that some other person not assessed should have been, is no ground for these plaintiffs to maintain their suit. It might afford a sufficient reason for correcting, or even annulling, air assessment by the proper tribunal and in a proper proceeding (appeal or certiora/ri), but it has never been admitted as a ground for the interposition of a court of equity. (Muscatine v. Mississippi, 21 Wis., 566; also cited in 1 Dillon’s Pr.)

      F. S. Fdwards, for the respondent.
    Courts will interfere by injunction: First, where the proceedings will necessarily lead to a multiplicity of claims; second, where they lead in their execution to the commission of irreparable injury to the freehold; third and fourth, where the tax is upon the land, and the law allows it to be sold to collect the tax, and the conveyance to be executed by the proper officer would be prima facie evidence of title. {Kay ward v. City of Buffalo, 14 N. Y., 541; Hamün v. Supervisors of Westchester County, 8 Abb. [N. S.], 261; Gooh v. An&rews, 40 N. Y., 547, 549; Hatch v. City of Buffalo, 38 id., 276; Allen v. Oity of Buffalo, 39 id., 386; Railroad Gompamy v. Brownell, 24 id., 348; Shaw v. Dwight, 27 id., 247; Wood v. Seeley, 32 id., 110, 113, 114, 117; Newell v. Wheeler, 48 id., 486; Rosevelt v. Barnum et al., 12 How., 469; Wood v. Draper, 4 Abbott, 322; Christopher v. The Mayor et al., 3 Barb., 567; Stuyvescmt v. Pearsall, 15 id., 244; Edwards on Parties, 40; Code, § 119 ; McKinzie v. NAmoreux, 11 Barb., 518; Robinson v. Smith, 3 Paige, 222,231; Gady v. Conger, 19 N. Y., 256,261; Hanson v. Vernon, 1 Am. R., 215; Steines v. The FranTclin Go., 8 id., 87; 14 id., 394; 24 Barb., 187; 12 N. Y. S. C. R., 67; Mazrsh v. Gity of Broolclyn, 59 N. Y., 280.) The following cases are referred to as bearing directly on the questions at issue: Longley v. City of Hudson (4 Thompson & Cook’s N. Y. Sup. Ct. R. [part 3], 353); The People v. City of Brooklyn (23 Barb., 166, 173; 6 id., 209, 211); Lutes v. Briggs (12 N. Y. Sup. Ct. R., 67); Ilasscm v. Gity of Rochester (6 Bans., 185, 195); Ayers et al. v. Lawrence et al. (59 N. Y., 198). All the cases which have decided that a tax-payer coaid not maintain the action to set aside an illegal assessment, are based upon the doctrine laid down by the Court of Appeals in Roosevelt v. Draper (23 N. T., 323); Doolittle v. Supervisors, etc. (18 id., 155), which cases are directly overruled by the case of Ayers v. Lcmrence (59 id., 192), under the act of 1872, and this act was passed to obviate the difficulties arising to parties by reason of those decisions.
   Talcott, J.:

This is an appeal from a judgment rendered on the report of a referee.

The complaint seeks to restrain the proceedings of the village corporation respecting an assessment for the payment of the expenses of constructing a'sewer in Lion street, in the village of Dunkirk, and to set the same aside for various reasons alleged, none of which appear on the face of the proceedings, which are conceded to be, so far as the formal proceedings are concerned, in all respects regular and according to the charter of the said village.

The action is sought to be maintained on the ground that the assessment roll has been confirmed and filed and the warrants of the village attached thereto, directing the collector of the village to collect the sum of $9,118 out of the property of the several persons named in said assessment roll, and that said collector is now proceeding to collect the amount specified out of the property of the several persons thereby assessed. The action could not be maintained to relieve against a mere personal tax or assessment. (Mooers v. Smedley, 6 Johns. Ch., 30 ; Heywood v. Buffalo, 14 N. Y., 534.)

It is supposed by the counsel for the respondents that an action may be maintained in equity for this purpose under the decision in Ayers v. Lawrence (59 N. Y., 192). That decision was based upon the statute (Laws of 1872, chap. 161), which was admitted to have introduced a new rule as to cases arising under the statute, but the statute does not apply to this case. It is “ to prevent waste or injury to any funds or estate of such county, town or municipal corporation ” for which an action under that statute will lie at the suit of a tax-payer. The case of Ayers v. Lawrence was decided by a nearly equal division of the court of last resort, and is not to be extended beyond tbe limits of tbe case tben under consideration. It is only upon tbe ground of removing a cloud upon tbe title of tbe plaintiffs, and those in a like situation wbo may be disposed to come in witli tbem and seek tbe benefits of tbe suit. Tbat tbe action can be maintained, and upon tbe ground tbat tbe acts of tbe village authorities have, so far as tbe formal and recorded proceedings go, been entirely regular and in accordance with tbe provisions of tbe charter of tbe village, and tbat tbe invalidity of tbe assessment appears only dehors tbe record, tbat tbe action in equity can be maintained. (Crooke v. Andrews, 40 N. Y., 547; Heywood v. Buffalo, 14 id., 541; Hatch v. Buffalo, 38 id., 276.)

If tbe invalidity appeared upon tbe face of tbe proceedings they could be set aside upon a common-law certiorari.

But as we understand tbe law to be now settled, whenever an assessment is invalid and such invalidity is shown only by matter dehors tbe record, which in itself is in all respects regular, and within tbe power and jurisdiction of tbe authorities an action in equity may be maintained by any one upon whose real estate an apparent lien has been created by tbe assessment.

The objections to the assessment, as found by the referee in this case, consist of divers matters showing tbe assessment to be unjust, unequal, and not in accordance with those provisions of the charter which require tbe assessors to determine what property is benefited by a sewer, “ and to assess upon such property so benefited tbe cost and expense of its construction, according to tbe determination of said board of trustees, in a just and equitable manner, and as nearly as may be in proportion to the advantages which such owner of property may be deemed to derive therefrom.” (Charter of Dunkirk, chap. 479, Laws of 1867, title 12, § 3.) The counsel for the appellant refers us to the case of Sanders v. Yonkers (63 N. Y., 492), but the distinction between that case and the one at bar is to be found in the fact that the assessment is not charged to be illegal on the face of the proceedings and is found to be wholly regular and apparently in accordance with the provisions of the charter, and this circumstance is adverted to in tbe opinion in tbat case, which came up on demurrer, by the court saying “ there is no allegation in tbe complaint that the assessment is, on its face, regular; ” as a reason why an action cannot be maintained to remove it as a cloud upon the title; leaving the inference open, that if an allegation had been contained in the complaint in that case, embodying the fact found in this, that the assessment was, on its face, regular, the action would have been held maintainable.

It is unnecessary to inquire in this case whether the statute makes any certificate of sale or any other record presumptive evidence of the regularity of the proceedings, since it is found and admitted that the proceedings touching the assessment are all regular on their face, and the matter which shows the invalidity of the proceedings ai'ises outside of the record, and is to be shown mainly by parol testimony.

The charter of the village declares, every tax and assessment, for whatever purpose imposed, charged on any real estate within said village, shall bé a lien upon the real estate so charged, from the time of the completion and filing of the assessment roll with the clerk of the village, until the expiration of two years after such filing, * * * and the board of trustees may, at any time within said two years, sell such real estate to satisfy such tax, as herein provided.” (Charter, title 19, § 2.)

To show that the assessors in this case have proceeded upon erroneous principles in the details of their assessment, it will only be necessary to refer to two or three of the findings of the referee, fie finds that some of the ¡property assessed is not benefited at all by the sewer; that some of the land assessed is lower than the bottom of the sewer and cannot be drained into the sewer; that a large portion of the land assessed cannot be drained into the sewer without a considerable expense and changing the surface of the lots. It also appears that certain of the persons assessed cannot reach the sewer in question for purposes of drainage, without crossing lands belonging to others, and that certain lands were assessed at one uniform rate per foot, without regard to the distance they were situated from the sewer or to the expense of making a connection therewith.

It was held in The People ex rel. Marvin v. Brooklyn (23 Barb., 166), “if it is entirely clear that any portion of a proposed district cannot be benefited, an attempt to render the property in it liable to pay a part of the expenses may be defeated, if not before the corporate authorities, certainly before a judicial tribunal having the power to annul and correct the proceedings,” and in the same case “ where there is not and cannot be any connection between the property and the projected sewer, such property is beyond the limits of rightful assessment.”

And in The People ex rel. Parker v. The County Court of Jefferson County (55 N. Y., 604), under the provisions of the act for draining overflowed lands, it was held that if an erroneous rule is adopted e. g. an apportionment by the acre, instead of according tc the benefit, that the assessment was properly set aside by the County Court.

"We think it is obvious in the present case, that the assessors adopted erroneous rales as the basis of their assessment, and in so doing violated the spirit and intent of those provisions of the charter of the village of Dunkirk which provide for the assessment of the expense of the sewer “in a just and equitable manner, and as near as may be in proportion to the advantages which such owner of property may be deemed to derive therefrom,” and consequently we must affirm the judgment.

Present — Taloott, P. J., Smith and MerwiN, JJ.

Judgment affirmed.


source: Caselaw Access Project

author: Taxcott, J.:

license: Public Domain

text:
    JEREMIAH RECTOR, Respondent, v. EZEKIEL CLARK, JAMES MILLER AND JOHN I. DURRY, Appellants.

      Action for false return — complaint in — what it must contain — Appeal from decision of commissioners of highways — what may he reviewed, hy ref wees.

    In an action to recover damages for a false return made to a certiorari to review the action of referees, appointed hy a county judge to review the decision of commissioners of highways altering a highway, the complaint must allege that the particulars in regard to which the return was false were material and induced the General Term to affirm the proceedings of the referees.
    Where an appeal is taken from the decision of commissioners of highways altering and discontinuing portions of a highway, to referees appointed hy a county judge, in pursuance of section 8 of chapter 455 of 1847, the appellant must specify in his notice of appeal the grounds upon which it is taken; and the referees can consider none others than those so specified.

      Upon such an appeal, the referees cannot inquire into the jurisdiction of the commissioners, but must assume the order appealed from to be a valid one; and are confined to an examination as to the necessity and propriety of the order upon its merits.

      People ex rel. Rubber'd v. Rwiris (63 N. Y., 391) followed.

      Commissioners v. Merserole (10 Wend., 122) and Commissioners v. Judge of Putnam County (7 Wend., 264) criticised and distinguished.
    Aiu-bal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury.
    Tbe defendants were appointed referees to bear an appeal from an order of tbe commissioner of highways, in and for tbe town of Benton, Tates county, wherein tbe plaintiff was appellant. Tbe referees affirmed tbe order of said commissioners. A writ of certiorari was granted by this court, to which the referees made return. This court approved of tbe proceedings of said referees and quashed said writ. Tbe plaintiff thereafter brought this action, alleging that tbe return to said writ was false, and that by reason thereof be bad sustained damages. A trial was bad before Justice Rumsey and a jury, and a verdict rendered for tbe plaintiff; a case with exceptions was made, and a bearing thereon bad before Justice Rumsev upon a motion for a new trial. Tbe motion was denied, and tbe judgment appealed from was entered.

      Morris <& Leary, for tbe apjiellants.
    Tbe appeal must specify tbe grounds thereof, and tbe referees are confined in their bearing to these, as is a court on a trial to tbe allegations in a complaint. (2 R. S. [2d ed.], § 86, p. 478 ; Comrs. of Warwick v. Judges of etc., 13 "Wend., 432; People v. Harris, -63 N. Y., 391.)

      Charles Baker, for tbe respondent.
   Taxcott, J.:

This is an appeal from a judgment entered for tbe plaintiff on a verdict at tbe Yates County Circuit.

Tbe action is to recover damages for a false return made by tbe appellants to a writ of certiorari issued out of this court and directed to tbe town clerk of tbe town of Benton, in Yates county, and to tbe defendants as referees appointed by tbe county judge of Yates county, on tbe appeal of tbe plaintiff from tbe decision of the commissioner of highways of said town, ordering the alteration of a highway. The alleged falsity of the return in question consists in this, that the referees returned that they adjourned the hearing from the eleventh to the thirteenth of December. That on that day (the thirteenth) the plaintiff was present at the adjourned hearing and that the counsel for those who appealed from the determination of the commissioners, declared at the hearing on the eleventh, that if the referees should decide that they were not empowered to hear the objection to the jurisdiction of the commissioner of highways, then, that the appellant from his decision, did not wish to introduce any evidence. On all these questions, the evidence was conflicting and was properly left to the consideration of the jury, and they have found that the return was false in one or all of the particulars charged.

On this appeal, the appellants’ counsel claims that there is not a sufficient cause of action set forth in the complaint, but that the 'same is defective in this, to wit: that it is not alleged, that the particulars in regard to which the return was false, were material, and induced the court at General Term to affirm the proceedings of the referees. This question is raised by an objection to the introduction of the evidence of the affirmance of the proceedings by the General Term and upon a motion for a nonsuit.

It is unquestionably true, that in an action for a false return, it must be shown, that the party bringing the action has sustained damages by reason of the falsity of the return, as the mere falsity of the return is not actionable unless the party complaining has been injured by such falsity.

Accordingly, it has been held that the plaintiff, in order to maintain an action, must show that he sustained injury by reason of the falsity of the return, and that for a false return upon immaterial points, no action lies. (Ford v. Smith, 1 Wend., 48; Millard v. Jenkins, 9 Wend., 301.) The complaint however contains the general averment, that by reason of the specified wrongful acts of the defendant, the plaintiff sustained divers special damages. The obvious mode of taking the objection referred to, was by a demurrer to the complaint and doubtless the defect was one which was amendable.

Though strictly speaking, the defendant perhaps had a right to • take tlie objection on tlie trial, on tbe ground, that the complaint did not, in consequence of this omission, set forth a cause of action, and we agree with the justice before whom the cause was tried, that an amendment should be ordered to supply the defect, by reason of the omission to allege that the matters falsely returned were material to the disposition of the case on the return to the certiorari, and also, that the court before which the certiorari was returnable did quash the certiorari.

The defendants, however, present another point subsidiary to the former, to wit., that the certiorari must have been quashed because the grounds of the appeal from the order of the comrnis sioner of highways did not present any question on which the referees could act, and therefore, that they necessarily affirmed the decision of the commissioner, and that the writ of certiora/ri must inevitably have been quashed by the General Term, for this reason. The Revised Statutes in the case of an appeal from the determination of a commissioner of highways in the laying out, altering or discontinuing any highway, provide that the appeal to the county judge should be in writing, and should briefly state the ground on which it is made, and whether the appeal is brought to reverse entirely the determination of the commissioner or only to reverse a part thereof, and in the latter case it shall specify what part (1 R. S., 518, § 86), and it is insisted by the defendants, that this provision is applicable under section 8, of the Laws of 1847, chapter 455, and that the appellant is confined to the grounds of appeal stated in the notice.

We think this view is correct, and that the statute requiring the grounds of the appeal to be set forth, is in force and applies where the referees are appointed to decide upon the appeal under the act of 1847. The grounds of the appeal stated in this case were calculated only to raise questions as to the jurisdiction of the commissioner of highways to lay out or alter this highway. The application to the commissioner was to have a “survey of the road running from Cronk’s Corners west to Potter.” The commissioner came to the conclusion that the said road should be altered, and accordingly altered it as stated in his order, and discontinued such parts of the road as were not embraced within the limits of the road as altered.

In tbe appeal from this order tbe appellant states: tbe ground upon wbicb tbis appeal is made is, “ that tbe said order is unlawful and erroneous, for tbe reasons following, among others: First. That no highway bad been laid out or recorded over or upon any part of tbe land included in tbe bounds of tbe highway described in said order. Second. That tbe highway as thus laid out embraced a part of the appellant’s garden, cultivated as such for more than four years before such laying out, and a part of bis yards and inclosures, and was laid out without the consent of the appellant, and there was no certificate of freeholders that such highway is necessary and proper. These grounds of appeal are all of them matters which go to the jurisdiction of the commissioner and his right and power to alter tbe highway in the manner proposed.

These are not questions which can be considered by referees appointed by the county judge, but are to be reached by a certiorari to the commissioner of highways — bringing up the proceedings before him — an appeal to the county judge for the appointment of referees when the commissioner has determined to lay out or alter the course of a highway, only lies for a re-examination of the merits of the proposed laying out, or alteration, that is to say: the referees only have the power to consider and determine whether the highway as proposed to be laid out or altered, is necessary and proper. This subject has recently undergone a full examination by the Court of Appeals, in the People ex rel., Hubbard et al. v. William B. Harris et al. (63 N. Y., 391), in which the doubts upon this question, growing out of the apparently conflicting decisions in former cases, have been put at rest, and in which it was settled that upon a hearing before the referees, the order-laying out the road must be assumed to be a valid order, and that the referees are confined to an examination upon the merits.

We are aware that there have been two cases decided by the old Supreme Court, which, if they are to be followed, go far to abrogate the provisions of the statute, which requires the party to such an appeal to state in writing the grounds of the appeal, etc. In The Commissioners of Bushwick v. Meserole (10 Wend., 122), where the only ground stated was, that the proposed highway was illegal, and it was held to be a sufficient statement of the grounds of the appeal, and in The Commissioners of Carmel v. The Judges of Putnam County (7 Wend., 264), where it was held that the appended.statement to the proceedings, “I do hereby appeal from the decision of the commissioners of highways,” was held to be sufficient.

But these cases seem fro tanto to abrogate the statute, and if to be followed at all should not be extended to other cases. In this case, the appellant has formally set forth the grounds of his appeal, according to the provisions of the statute, and in such case, we think the referees cannot consider any other questions than those presented by the written appeal.

The statute evidently contemplates that an appeal to referees is solely to enable the appellant to have the judgment and opinion of three disinterested freeholders, to be selected by the county judge, upon the necessity and propriety of the road in place of the determination of the commissioner. The tribunal is not one calculated for the examination and determination of questions of jurisdiction or of law, and its office is, therefore, confined to the exercise of ’ its judgment and common sense, about matters in respect to which it is presumed to be competent. (People ex rel. Hubbard v. Harris, supra.)

~Wo think, therefore, that it was apparent that the plaintiff in this action could have sustained no damage from the allegations of the return to the eertiora/ri, admitting them to have been false in the particulars claimed, because the appeal presented no questions which the referees could investigate, and the action of the referees in affirming the determination of the commissioner must necessarily have been affirmed and the eertiora/ri to remove the proceedings quashed, at all events, and without regard to the matters in which, as is alleged, the return is false. (See Ford v. Smith and Millard v. Jenkins, supra.)

If this conclusion is correct, it leads to a reversal of the judgment rendered in the case.

Judgment reversed, new trial ordered, costs to abide the event.

Present — Talcott, P. J., Smith and Merwin, JJ.

Ordered accordingly.


author: Talcott, J. :

text:
    THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Plaintiffs in Error v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      General railroad act — chap. 140 of 1850 — power of railroad to cross highways — manner of doing so, left to its discretion.

    rhe general railroad act of this State provides that “ whenever the track of a railroad company * * * shall cross * * * a highway, * * * such highway * * * may he carried under or over the trade, as may he found most expedient; ” and that the company shall restore “the highway, * * * thus intersected or touched, to its former state, or to such state hs not unnecessarily to have impaired its usefulness.” Meld, that the determination of the question as to the expediency of carrying the highway over or under the'track was left to the railroad company; and that its decision thereon could not be reviewed by a court or jury.
    An indictment against the company for a nuisance in obstructing a highway, founded solely upon the fact that it had been carried over the track upon a bridge and embankment, cannot be maintained.
    If the company fail to restore the road to its former state or condition, or to such state as not unnecessarily to impair its usefulness, the proper remedy is to apply for a mandamus compelling it to perform the omitted acts.

      Qumre, whether an indictment distinctly charging the omission of the acts which it might and ought to have done, for the purpose of properly restoring the highway, would lie.
    Writ of error to review a judgment of the Court of Oyer and Terminer in Monroe county adjudging “ that the defendant abate the said nuisance ” (alleged in the indictment, viz., the construction of its road over a highway) “ by entirely removing the same from the said highway at their own cost and expense within sixty days from this date or within sixty days after final judgment, and in default thereof the defendant be, and it hereby is, sentenced to pay a fine of two thousand dollars, and that the usual process of this court as against corporations be issued to collect the same, and in case the defendant does not abate the said nuisance, then it is ordered that the usual process issue to the sheriff of Moure county directing him to abate the said nuisance, and that the costs and expenses thereof be paid out of the fine as aforesaid imposed.”
    Also, an appeal from a judgment denying the appellants’ motioii for a new trial.

      E. Harris, for plaintiffs in error.
    The statute gives the option
    to the company to carry the highway under or over. The company is to elect as to the mode of crossing. (Regina, etc., v. T.lieSouthEastern Railway Co., 6 Eng. L. & Eq. Rep., 214; S. C., 20 Law J. [N. S.], Q. B., 428.) TLe statute having permitted the company to carry the highway over the track, it cannot be convicted of a’nuisance therefor. (Crittenden v. Wilson, 5 Conn., 165-161; People v. Platt, 11 Johns., 195*; Harris v. Thompson, 9 Barb., 350-364; Trustees, etc., v. TJ. and S. R. R. Co., 6 id., 313 ; Hentz v. Long Island R. R. Co., 13 id., 646 ; Williams v. H. Y. C. R. R. Co., 18 id., 222; Robinson v. N. Y. and Erie R. R. Go., 21 id., 512, 520; Renwich v. Morris, 1 Hill, 515.)

      A. McDonald, for the defendants in error.
    Any permanent obstruction unlawfully maintained in a highway is a public nuisance, subject to indictment. (2 Wharton’s Precedents, 614, note ; Davis v The Mayor, 14 N. Y., 524; The People v. Cunningham, 11 Denio, 524.) The right of the public to pass and repass on the highway is paramount, and hence the grant to the railroad company must be strictly construed. (The People ex rel. v. Del. and H R. R., 58 N. Y, 152 ; Cott v. The L. R. R. Go., 36 id., 216.) The grant is to occupy and use plank-roads, turnpikes and streams, on exactly the same conditions, viz., a continuing liability “ to restore the highway, stream, etc., to its former state, or to such state as not necessarily to have impaired its usefulness.” Whenever the railroad ¡¡¡orporation ceases to fulfill that condition, it forfeits its right to occupy and use the highway, and that this condition is absolute and is in no way dependent upon the proper or improper use of the discretion given by section 24, or upon whether such exercise of discretion was in good faith or not. (3 Pay’s Digest Laws N. Y., 206, § 30 ; Laws of 1850, chap. 140, § 28; 1 Redf. on Railways, 411-423, note; 2 id., 401-409 ; The People ex rel. v. Boston R. R., 31 How. Pr. R., 421; -Cott v. Lewiston R. R., 36 N. Y., 214; Worster v. Forty-second Street R. R., 50 id., 205; Mahon v. N. Y. C. R. R., 24 id., 661; Reg. v. B. and G. R. Co., 2 Aid. & Ellis [N. S.], 41; Atty.-General v. D. G. R. R., S Law Rep. [N. S.], 608; The Wardens v. L. C. D. R. R., 1 Jurist [pt. 1], 453; Troy and Boston R.R. v; Horthern R. R., 16 Barb., 105.)
   Talcott, J. :

The writ of error in this case brings up a record of the conviction of the plaintiffs in error for a nuisance for obstructing a highway in the town of Sweden, by causing the said highway to be carried by means of a bridge and embankment over the railroad track of the plaintiffs in error. From the charge of the court recited in the judgment, it must be taken that the jury found the whole affair, carrying the highway over and across the railroad by means of said bridge and embankment, was in and of itself a nuisance, and judgment has been rendered in the case that the defendant abate the said nuisance, by entirely removing the same from the said highway at their own cost and expense, within sixty days after final judgment, or in default thereof, that the defendant pay a fine of $2,000, and that the sheriff abate the nuisance, so that, in fact, the defendant has been convicted of a nuisance for completing the crossing of a highway, by carrying the highway over the railroad by means of an embankment and a bridge. Under ordinary circumstances and in the absence of any legislative grant, such a public obstruction in a public highway would, without doubt, constitute a nuisance, and would subject the offender to an indictment, but the plaintiffs in error claim a legislative grant to do the act in question.

By the general railroad act (Laws of 1850, chap., 110) it is provided, in section 21, that whenever the track of a railroad constructed by a company formed under this act shall cross * * * a highway * * * such highway * * * may be carried under or over the track, as may be found most expedient * * * By section 28 of the same act it is provided that the corporation formed under the said act shall have power (sub. 5) “ to construct their road across, along or upon any * * * highway * * * which the route of its road shall intersect or touch, but the company shall restore the * * * highway * * * thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness.”

And the presiding judge at the Oyer and Terminer seems to have proceeded upon the theory, that this obligation to restore the highway to such state as not unnecessarily to have impaired its usefulness, was in the nature of a condition precedent to the exercise of the right to cross the highway at all, and therefore he instructed the jury as follows: “The main question is, whether the mode of crossing the highway, to wit, by means of the embankment and bridge, by which the highway is taken above its former level and is carried over the railroad track at a height of several feet, whether that, in, and of itself, is a nuisance, by reason of the obstruction it presents to travel * * * . I submit to you in the first place this pi’oposition. If the question as to the most expedient mode of crossing the highway at this particular place is simply a question in respect to which different engineers, of ordinary capacity, skill and experience in the business of laying out railroads would honestly diffei in opinion, having regard as well to the effect of the proposed crossing upon the condition and usefulness of the highway as to the interests of the railroad company, then the mode adopted cannot be regarded as a nuisance, in and of itself, although the jury should be of opinion that it was not the most expedient one. * * * The statute to which I have adverted says to them in express terms: ‘ You can cross the highway over or under as is most expedient; you can cross it in any way, provided you do not unnecessarily impair the usefulness of the highway. That condition you must observe. * * * On the other hand, I submit to you as a proposition of law, that if it appears by the evidence, that in deciding upon the mode of crossing the point in question the interests of the company alone were consulted, and due attention was not paid to the condition of the highway or the rights of the public in the use of the highway, and that the mode adopted had and continues to have the effect to unnecessarily impair the former condition and usefulness of the highway, then the jury will be warranted in finding the defendant generally guilty under the indictment, guilty of maintaining a nuisance in that mode of crossing under such circumstances.”

To this instruction the plaintiffs in error excepted, and this exception presents the main question in the case.

The indictment is for carrying the highway over the tracks instead of under it, or at grade, that is, upon a level with the highway. The statute, as we have seen, gives the railroad company the power to carry the highway over or under the track, “ as may be found most expedient.” Found by whom? There is no tribunal named in the act for determining the question of expediency, or which course will be the most expedient, clearly as it seems to me, the railroad company is to determine that question; and when it has determined it in good faith, though it may, in the opinion of the jury, have erroneously determined the question as to the relative expediency of the mode of crossing, can its judgment be reversed by a jury ? It seems to me not. The legislature of the State, whether wisely or unwisely, have conferred upon the railroad company the power of determining the question, and no appeal from the determination of the company is provided by the law either to a court or jury. If left to be determined by a jury after the company has deliberately determined the mode of crossing the highway, by adoping one of the alternatives authorized by the statute, one jury might determine that the manner of crossing, which would least impair the former usefulness of the highway, would be by crossing under the grade of the highway; another, by having the highway cross above the track, and still another might conclude that the most expedient method of crossing the highway would be at grade. It seems to me that the legislature has seen fit to confer the exclusive power to determine the question as to the relative expediency of the mode of crossing, upon the railway company, deeming the provision requiring the railway company to restore the highway so as not to have um/necessa/rily impaired its usefulness, a sufficient protection to that portion of the public which has occasion to use the highway for purposes of ordinary travel.

That the usefulness of the highway as such may, to some extent, be impaired by a railroad crossing, the statute impliedly concedes. If the railroad company fail, as far as possible, to restore the highway to its former condition, a mandamus, which shall direct the company what shall be done to complete such restoration, as in The People v. The Duchess and Columbia Railroad Company (58 N. Y., 152), may be issued to compel the performance of the omitted duty, or perhaps the railroad company may be subjected to an indictment, distinctly charging the acts which it might and ought to have done for the purpose of restoring the highway.

But I do not think the remedy is to be found in an indictment for a nuisance, founded on the manner of crossing, when, as I construe the statute, the railroad company has the exclusive power of determining that manner, and when it has been by it determined that the particular mode selected is the “ most expedient ” it has the warrant of the legislature for crossing the highway in that, particular manner.

These views lead to a reversal of the conviction and judgment, and if correct there is no occasion for a re-trial of the indictment.

Present — Talcott, P. J., Smith and Merwin, JJ.

Judgment and conviction reversed.


author: Talcott, J.:

text:
    GARDNER FOSTER, Appellant, v. RUFUS B. BULLOCK, Respondent.

      Deposition, of party tabeen conditionally — blow it must be tabeen — form of certificate to.

    Under tlie provisions of section 6 of 2 Revised Statutes ([2d ed.], 313), in relation to the taking of depositions, providing that the deposition “shall be carefully read to and subscribed by such witness; shall be certified by the officer taking the same,” etc., the certificate must state that the deposition has been read to the witness and subscribed by him; and such reading must take place in the presence or, at least, under the general supervision of the officer taking the same, and it must be subscribed in his presence.
    Appeal from an order made at the Special Term suppressing a deposition of the .plaintiff.
    The motion was made on the ground that there was no certificate attached to it as required by law. The paper commenced with the following statement:

      “ Examination of plaintiff, taken conditionally, pursuant to annexed order,” and ended as follows :
    “ GARDNER FOSTER.

      “ Sworn before me, this 30th day of October, 1876.
    • “R. L. Larbamore,

      “J. G. P.

      1,1 Filed November 1,1876.”

      The following affidavit was submitted on tbe part of tbe plaintiff', showing tbe manner in which tbe deposition was taken:
    “--, of said city, being duly sworn, says : I am one of tbe attorneys for tbe plaintiff; as appears by tbe affidavits, order and proof of service annexed to tbe plaintiff’s deposition filed on tbe fourth of November last, proceedings were duly and regularly taken for tbe examination óf tbe plaintiff, conditionally; before tbe return day of said order, tbe plaintiff duly appeared in tbe chambers of tbe Supreme Court in tbe court-house at tbe city of New York, for examination before tbe justice there presiding, and at tbe same time there appeared besides deponent, as the’ plaintiff’s counsel, also tbe defendant in person and - -, Esq., counselor-at-law, as defendant’s counsel to attend such examination. Thereupon, in tbe presence of tbe defendant and bis said counsel, tbe paintiff was duly sworn. Thereafter tbe said chambers of said court being crowded with many persons, tbe plaintiffs, with tbe assent of tbe defendant and bis said counsel, and in their company, went into a neighboring room for the purpose of submitting to examination. I then propounded to tbe plaintiff questions upon bis direct and re-direct examination, and said--, as counsel for tbe defendant, questions upon bis cross-examination, I taking down bis replies thereto, tbe defendant and bis said counsel being present during tbe whole examination. After tbe examination was completed tbe same was carefully read to tbe plaintiff by me, and be then subscribed tbe same and accompanied by tbe defendant and bis said counsel, went into said chambers and swore to the same before Justice Larramore, then sitting in tbe same, and said justice thereupon subscribed bis name to tbe certificate of said deposition. Tbe certificate was drawn in tbe presence of tbe defendant and bis counsel, and tbe plaintiff’s and said justice’s signature were also affixed in their presence. * * * Tbe examination of tbe plaintiff was taken in tbe usual manner in tbe said district, and tbe certifying portion of said examination, viz.: ‘ Examination of tbe plaintiff, taken conditionally pursuant to tbe annexed order — city and county of New York, ss., Gardner Foster being duly sworn says ‘ Cross-examined,’ £ re-direct,’ and £ sworn before me this 30th day of October, 1876,’ are all in tbe usual and customary form, as I verily believe.’ ”

      Townsend c& Weed, for the appellant.

      John II. White, for the respondent.- ■
   Talcott, J.:

This is an appeal from an order made at the Special Term iir Albion, suppressing a deposition of the plaintiff for certain alleged informalities. The alleged informalities are that the deposition was not reduced to writing by Justice Larramore, or read over to tbe witness in bis presence, and no sufficient certifícate of tbe taking thereof is attached to tbe same. Tbe deposition was produced on tbe bearing of tbe motion, and shows tbe examination of tbe witness both direct and cross, taken by question and answer, and commences with tbe recital, “ examination of plaintiff taken conditionally, pursuant to tbe annexed order.” It purports to be signed by tbe witness and to it is attached tbe ordinary jurat to an affidavit, “ sworn before me tbis 30th day of October, 1876, R. L. Larramore, J. C. P.”.

Tbe statute provides that “such deposition shall be carefully read to and subscribed by such witness; shall be certified by tbe officer taking tbe same.” (2 R. S. [2d ed.], 313, § 6.) Tbe statute does not prescribe tbe form of tbe certificate. Tbe certificate in tbis instance, taking it altogether, is a certificate that tbe examination was taken conditionally pursuant to tbe annexed order, and was sworn to before tbe justice who was at tbe time specified, sitting in tbe chambers of tbe Supreme Court at New York, and tbe examination commences with a recital to tbe effect that tbe witness was duly sworn. Tbe order annexed prescribes no form for tbe examination or for its verification.

In McDonald v. Garrison (18 How. P. R., 219) tbis subject received an elaborate examination by Mr. Justice J. F. Daly, of tbe New York Common Pleas. In tbe opinion in that case be comes to tbe conclusion that tbe examination of a witness need not be reduced to writing by tbe band of tbe judge before whom it is taken, but be may employ an amanuensis, but that tbe officer who takes tbe examination must see that tbe testimony is carefully read over to tbe witness, and that tbe witness subscribes tbe same with a full understanding of its contents. Though tbe statute does not provide what tbe certificate of tbe officer shall contain, it states that it shall be carefully read over to tbe witness and subscribed by him, and be certified by tbe officer taking tbe same. What is to be certified by the officer taking the same ? Obviously, as it seems to us, the fact that the examination has been read to, and is subscribed by, the witness.

The certificate in this case does not purport to be to the effect that the witness in fact “ subscribed ” the deposition, or that it was read over to him before doing so, and from the account given in the affidavit of the plaintiff’s attorney of the manner in which this deposition was taken, in accordance, as he says, with the usual practice in such cases in New York, it is apparent that the deposition was not read over to the witness in the presence of Judge Larramore, or subscribed in his presence, so that he could not certify to either fact. Perhaps the judge would not be required to see to the reading of the deposition in detail, with a view to be able to testify that it was in all respects correctly read, but the reading should at least be under his general supervision, and the deposition should be subscribed in his presence.

The counsel for the plaintiff insists that the certificate can now be amended, and that the order of the Special Term should have granted leave to amend, but the affidavit of the plaintiff’s attorney shows that the certificate cannot be truly amended so as to show that the deposition was read over to the witness, or that it was subscribed in the presence of the judge.

Order appealed from, suppressing the deposition of the plaintiff, affirmed with ten dollars costs of the appeal and disbursements.

Present — Talcott, P. J., Smith and Merwin, JJ.

Ordered accordingly.


text:
    JACOB KENNER, Appellant, v. JOHN A. MORRISON, Respondent.

      County judge — power of to grant new trial — Action for false imprisonment— liability of a justice of thepeaee, for error in judgment.

    A county judge has power to grant a new trial upon his minutes, when a verdict is found in opposition to the evidence or upon insufficient evidence.
    The plaintiff having been brought before the defendant, a justice, on a charge of assault and battery, was, after an examination, required to give bail for his appearance at the next criminal court, and having failed to furnish the bail, and omitted to demand a trial by a Court of Special Sessions, he was committed to the keeper of the county jail, to be kept until discharged according to law. After having been therein detained for more than twenty-four hours, he was discharged on a habeas corpus, and thereafter brought this action for false imprisonment.

      Held, that, as the plaintiff had failed to demand a trial by a Court of Special Sessions, the justice was authorized to commit him to the jail for at least twenty-four hours, during which time he could give bail under the statute (2 R. S., 595, § 5); and that his mere omission to proceed to try him, after the expiration of that time, did not render him a trespasser ab initio.

    That, even if the justice believing that he was bound so to do, had committed the plaintiff, on his failure to give bail as required, to the county jail until he should do so, yet it was but an error of judgment; and that, as he had jurisdiction of the person of the plaintiff and the subject-matter, he was protected from an action for false imprisonment.
    Appeal from an order granting a motion for a new trial made upon the minutes of the county judge of Erie county, after a verdict in favor of the plaintiff.

      J. M. Humphrey, for the appellant.

      O. F. Hawlcms, for the respondent.
   Talcott, J.:

This is an appeal from an order of the county judge of Erie county, made on his minutes, ordering a new trial in this action.

The action was for false imprisonment brought against a justice of the peace, in which the piaintiff recovered a verdict of ninety-six dollars. The county judge, on the motion of the defendant, sot the verdict aside, and the plaintiff appeals from the order.

Tlie first objection wbicb the plaintiff makes, is that the county judge has no authority to grant a new trial on the minutes, being only authorized to grant new trials on exceptions, or a case made (Code, § 30), but it is probable that the power to set aside a verdict when found in opposition to, or upon insufficient, evidence, is inherent in any court of record before which a trial by jury takes place. (Allgro v. Duncan, 21 How. Pr., 210; S. C., on appeal, 39 N. Y., 313.)

It seems the defendant is a justice of the peace of one of the towns of Erie county, and the plaintiff was arrested and brought before the defendant on a complaint for assault and battery, and after an examination by the justice, was ordered to give bail for his appearance at the next criminal court having jurisdiction to try the plaintiff for said offense, and the plaintiff omitting to give such bail, and not requesting to be tried by a Court of Special Sessions, the defendant, as such justice, issued his warrant on the same day, whereby the plaintiff was committed to the custody of the keeper of the jail of Erie county, to keep him safely until he should be discharged according to law.

It does not appear that the plaintiff made any request to be tried by a Court of Special Sessions, and the statute gives to a prisoner under such circumstances, twenty-four hours, within which to elect to give bail for his appearance before the next criminal court having jurisdiction of the offense. (2 R. S. [2d ed.j, 595, § 3.) If he fail to do this, the justice is to organize a Court of Special Sessions, which now may be composed of but one justice of the peace. (Laws of 1815, ch. 180.) But during the twenty-four hours the person charged may be committed to jail for safe-keeping, or he shall continue in the custody of the officer arresting him, as the magistrate issuing the warrant of arrest shall direct. (2 R. S. [2d ed.], 595* § 5.)

The justice, it would seem, had a right to commit the plaintiff to the custody of the keeper of the county jail, and it would seem that his detention there was entirely within the jurisdiction of the-magistrate, at least for the twenty-four hours during which his right to elect to give bail continued. The right to commit the plaintiff to jail existed, and the.omission of the justice to organize a Court of Special Sessions, or to try the plaintiff at a Court of Special Sessions was the thing which the justice omitted to do, and by reason of which, as appears from the indorsement on the habeas corpus, he was discharged from custody on the sixth day of. July, upon the ground that more that twenty-four hours had elapsed since his examination.

The justice having jurisdiction of the party and the subject-matter, and having the right to commit the plaintiff to be held, at all events, during the-twenty-four hours, it is difficult to see how he could be a trespasser ab initio for the omission to proceed to try the plaintiff at a Court of Special Sessions, at the expiration of the twenty-four hours.

But conceding that the justice mistook his duty in the premises, and supposed that in the event of the omission of the defendant to give or offer sufficient bail for his appearance at the next criminal court, he was bound to- commit the party supposed to be guilty of the offense to prison, unless he should give such bail, it was an error of judgment. The defendant, as a justice of the peace, had jurisdiction of the person of the plaintiff and the subject-matter of the proceeding, and the doctrine of judicial irresponsibility protects the defendant from an action for false imprisonment. (Clark v. Holdridge, 58 Barb., 61; Hall v. Munger, 5 Lans., 100, and tjie recent case of Lange v. Benedict, 8 Hun, 362.)

Ve think, therefore, the order setting aside the verdict and ordering a new trial must be affirmed.

Present — Taxcott, P. J., Smith and Merwin, JJ.

Order of County Court of Erie county, setting aside the verdict and gi’anting a new trial, affirmed.


text:
    CHARLES R. LEWIS and EDGAR A. VAN HORNE, Executors, etc., of THOMAS MALONEY, Deceased, Appellants, v. JOHN MALONEY, General Guardian of ANASTASIA MALONEY, Respondent.

      Legacy — action for, pending in Supreme Court, aba/r to proceedings before surrogate.

    Tlie respondent commenced an action in tlie Supreme Court against tlie appellants, as executors, to recover a legacy alleged to have been left to him by the will of the appellants’ testator. Subsequently, and while such action was pending, he instituted proceedings before the surrogate requiring the executors to appear and render their account and pay over to him the said legacy. Held, that the action commenced in the Supreme Court was a bar to the subsequent proceedings instituted before the surrogate.
    Appeal from a decroe of the surrogate of Oswego comity directing the appellants, as executors of Thomas Maloney, to pay over to the respondent, as general guardian of A. Maloney, a legacy of $200 bequeathed to her by the testator.

      B. B. Burt, for the appellants.

      JD. P. Lester, for the respondent.
   Talcott, J.:

This is an appeal from the order of the surrogate of Oswego county, directing that the appellants, as executors of the estate of Thomas Maloney, pay to the respondent John Maloney, as general guardian of Anastasia Maloney, the sum of $200, left as a legacy to her by the will of the testator, Thomas Maloney. Before the surrogate the executors put in a formal answer to the citation, in which they state that the petitioner, as general guardian of Anastasia Maloney, commenced an action in the Supreme Court against the defendants, as such executors, for the recovery of the same legacy, in which suit he demands judgment for the said sum of $200, with the interest and costs of the action, and that the said action is still pending and undetermined.

And they offer, if the said petitioner will discontinue his said action in the Supreme Court, then that the proceeding before the surrogate may be continued; or that, if he will discontinue the proceedings before the surrogate, then that they are willing that the action may proceed and have the rights of the parties determined therein. They also deny a sufficiency of assets to pay said legacy, saying that the estate is invested in' bonds and mortgages not yet due. The surrogate overruled the said answer and held, as his order states, that the said answer was not a sufficient defense to the said application. In this we think the surrogate erred.

The Supreme Court has concurrent jurisdiction with the surro' gate to enforce the payment of legacies. (2 R. S., 114, § 9.) The surrogate has also the same jurisdiction, and if the same party who commences an action against an executor or administrator, subsequently cites him to account beforfe the surrogate, the pendency of the action in the Supreme Court, for the same object, ought to be allowed by the surrogate as a valid objection to the proceeding before him for the same object. 1 •

Where there are two proceedings pending between the same parties for the same object, the proceedings first commenced are a bar to those commenced afterwards. The principle governing such cases is, that if full relief can be had in the one proceeding, or action, no other shall be allowed. (Rogers v. King, 8 Paige, 210; Groshon et al. v. Lyon, 16 Barb., 461; in which the case of Rogers v. King [supra] is fully approved.)

The counsel for the respondent insists that there was no evidence offered to sustain the allegations of the answer of the executors, but it does not appear that the allegation of an action pending for the same cause was-denied, and, at all events, it does appear that the surrogate held that the matters set up in the answer constituted no defense, wherefore it would have been superfluous to have offered to substantiate them by evidence.

The order of the surrogate of Oswego county appealed from is reversed, with costs to be paid by the respondent personally, and not charged against the legacy.

Present — Talpott, P. J.,. Smith and Mekwin, JJ.

Ordered accordingly.


author: Talcott, L:

text:
    CARRIE A. BASSETT, Respondent, v. WILLIAM A. FISH and others, Trustees, etc., Appellants.

      Chap. 555 of 1864 — Trustees of union free schools — p&rsonally liable for allowing schools to get out of repair.

    The trustees of the union free schools, created by title 9 of chapter 555 of 1864, are ■ public officers, and as the duty is imposed upon them of keeping in repair the schools under their charge, and as they are provided with the means of obtaining the necessary funds for that purpose, they are personally individually liable to any person for the special damages he has sustained, by reason of any negligence or omission on their part so to do. (Merwht, J., dissenting.)
    Appeal by defendants from an order made at Special Term denying a motion for a new trial made upon a case and exceptions.
    The nine defendants were trustees of “ The Board of Education of the Gowanda Union Free School.” The action is brought by the plaintiff against them, individually, to recover for damages claimed to have been sustained by the plaintiff in, stepping through a hole in the floor of the school room, while she was engaged in teaching therein, in April, 1874; the plaintiff claiming that it was the duty of the defendants to keep the floor in repair, and that they were personally liable for their negligence in allowing the same to be out of repair.

      O. O. Torrenoe, for the appellants

      W. Woodbury, for the respondent,
   Talcott, L:

This is an appeal from the order of the Special Term in Erie county, denying a motion for a new trial on a case and exceptions.

The action is to recover of the defendants for negligence in suffering the building of the union school of Gowanda to be out of repair, whereby the plaintiff fell through a hole in the floor of one of the recitation rooms of said school and was severely injured.

The principal question presented on this appeal is, as to whether the defendants are liable at all in consequence of such negligence, the appellants insisting that the union school is a corporation, and the corporation in its corporate capacity should be sued and not the trustees individually. The said union school was established under title 9 of the act chapter 555 of 1864, which authorizes the establishment of union free schools, and by which the trustees thereof are denominated a board of education, and by which certain corporate powers are conferred upon such board. By section 13, of said title 9, subdivision 11, it is provided that the trustees of such union free schools, when organized under the act,“ shall possess all the powers and privileges and be subject to all the duties in respect to the common schools or the common school departments in any union free school in said districts, which the trustees of common schools now possess or are subject to. * * Sections 15, 16 and 17 provide that the board so constituted, may levy taxes for the payment of teachers’ wages, and for ordinary contingent expenses, and if the district meeting shall refuse or neglect to vote such tax, the board may in the manner therein provided cause the same to be levied, the same as though the tax had been voted by the inhabitants of the district.

The powers conferred and the duties imposed upon, the trustees of common schools are, among others, as stated in section 49, subdivision 5, of the seventh title and sixth article of said act (Laws of 1864, chap. 555), “to purchase or lease a site for the district schoolhouse or school-houses as designated by a meeting of the district, and to hire, build or purchase such school-house as maybe so designated, and to keep in repair and furnish such school-house ■k -x- it appears that the duty of keeping such school houses under their charge in repair, is imposed upon the said board of education or trustees, and they are provided with the means of obtaining ample funds for such purpose by taxation.

That they are public officers will scarcely be denied. The liability of the defendants as public officers for negligence in the performance of their duties, to a party who has sustained special damage by reason of such negligence or omission, though sometimes questioned, may be considered to bo settled in this State. (Adsit v. Brady, 4 Hill, 630; Robinson v. Chamberlain, 34 N. Y., 389, 390; Hover v. Barkhoof, 44 id., 113; McCarthy v. The City of Syracuse, 46 id., 194; Clark v. Miller, 54 id., 528.)

It was distinctly held by the Court of Appeals in McCarthy v. The City of Syracuse (supra), that “when the duty is imposed by law upon a public officer, * * * of keeping a structure in repair, it involves- the exercise of a reasonable degree of watchfulness in ascertaining the condition of such structure from time to time, and when this is omitted, such officer * * * is liable for damages resulting from a dilapidation of the structure which is an ordinary result of its use, and which would have been disclosed on examination. No notice to the defendant is necessary in such case to fix the liability.” The doctrine thus enunciated seems to afford, an answer to the objection, that the defect in the floor was not shown to be known to certain of the defendants. The duty to repair is imposed by the statute upon the trustees, and from their neglect to perform this duty it would seem they are liable, as the particular dilapidation would have been obvious upon examination, and their omission to make such examination was their own neglect.

It is not necessary to discuss the question whether this action' might have been maintained against the board of education of the union free school of G-owanda, “ as a quasi corporation, inasmuch as the duty of keeping this structure in repair is expressly imposed upon the trustees, and according to the authorities above referred to, they are individually liable for the non-discharge of such duty. It is claimed that the evidence shows that the defendants had delegated to one of their number, one Forbush, a caipenter and joiner by trade, the duty of seeing to the small repairs of the schoolhouse, and that the negligence if any, was that of Forbush, who had attempted to repair this hole in the floor of the recitation room, but had done it in an insufficient and insecure manner. That For-bush was for that purpose a servant of the other defendants and that the plaintiff, a teacher in the school was also one of the servants of the defendants, and that the plaintiff was debarred from a right to recover, upon the principle that there can be no recovery against the common employer for damages sustained by a servant through the neglect or unskillfulness of another servant of the same employer.

It does not seem to be necessary to discuss this question, as the case does not show that any such question was raised on the trial.

There is one exception taken to the charge of the court, which is not given in full, and must be presumed to have been in all other respects unobjectionable. The defendants’ counsel requested the judge to instruct tire jury “ that if the plaintiff knew it (the hole) was there, she was guilty of negligence and cannot recover.” In answer to this the court charged “ that it would not follow that because the plaintiff knew the hole was there, that she was careless or negligent in getting into it; that the performance of her duties may have so engrossed her attention as to have diverted it at the time from the existence of the hole, even if she knew it was there; whether that was the case or not is for the jury to determine from the evidence befora them.”

The defendants excepted to so much of the charge as instructed the jury that “it would not follow because the plaintiff knew the hole was there, that she was careless and negligent in getting into it.”

This exception merely raises the question, whether knowledge on the part of the plaintiff of the existence of the hole, of itself, and as a matter of law, was conclusive of her negligence. We think such a proposition cannot be maintained, and that the question of concurring negligence on the part of the plaintiff was properly a question for the jury upon all the evidence.

Judgment affirmed.

Smith, J., concurred.

Merwin, J., dissented, on the ground that the duty of repair was on the corporation, and not on the trustees individually

Order denying new trial affirmed.


author: Taloott, J.:

text:
    HENRY TAYLOR, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.
    Indictment— admission of testimony of one jointly indicted — Different counts charging different offenses — when allowed.

    -The plaintiff in error was tried aloneupon an indictment in which lie was jointly indicted.with one Bútts; the latter had never been arraigned, nor had a nolle prose-gm'been entered as to him. Upon the trial, Butts was called as a witness on beliaF of the people, no formal motion that he be admitted as a witness on their behai having been made. Counsel for the plaintiff in error objected that he was no
      a competent witness, having heen jointly indicted with the plaintiff in error for the offense with which the latter was charged. Held, that the objection was properly overruled and his testimony admissible.
    Where an indictment contains different counts, each of which technically describes a different offense, but it is apparent, from the general tenor of the indictment, that each count relates to the same transaction, and that the introduction of separate counts is not for the purpose of pi’oving distinct offenses, but only for the purpose of meeting possible variances or defects of evidence, the court may in its discretion treat it as, in fact, an indictment for one offense, described in different ways.
    Writ of error to tlie Court of General Sessions of Wayne county, to review the conviction of tlie plaintiff in error of burglary in the first degree.
    The defendant and one Alphonsus T. Butts were jointly indicted at the Wayne County Oyer and Terminer. The indictment was sent to the Wayne County Sessions for trial. The district attorney moved the separate trial of the defendant, and the same was there. had.

      J. 3. Camp, for the plaintiff in error.

      M. J. Greenwood, for the defendants in error.
   Taloott, J.:

The writ of error in this case brings up a record of a conviction for the crime of burglary in the first degree, before the General Sessions of Wayne county.

The plaintiff in error was jointly indicted with one Alphonsus T. Butts, as principal in the commission of the crime, but Butts was not arraigned on the indictment, and the trial was had upon the indictment against the plaintiff in error alone.

On the trial, Butts was called as a witness for the people, no nolle proseguí having been entered as to him, and no formal motion having been made that he be admitted as a witness in behalf of the people. The counsel for the plaintiff in error objected to the witness Butts being sworn, on the ground, that he was a party tc the record, a co-defendant in the indictment with the plaintiff in error and indicted as a principal in the commission of the offense.

.The court overruled the objection and allowed Butts to testify as a witness for the prosecution, to which ruling the plaintiff in error excepted. Butts testified and gave most material evidence to substantiate the charge against the defendant. The counsel for the plaintiff in error insists, that the ruling whereby Butts was permitted to testify was erroneous, and relies principally on The People v. Donnelly (2 Parker Cr. R., 182; S. C., 1 Abb., 459), as an authority to show that a party to the same indictment cannot be ’examined as a witness against another defendant to the same indictment, and on Lindsay v. The People (63 N. Y., 143). The case of Donnelly v. The People was expressly overruled in Wixson v. The People (5 Parker, 119), by the General Term of the seventh district, and in the latter case it was shown in a careful opinion by the late Mr. Justice Knox, that it was only in cases where the defendants to the indictment were tried together, that one is an incompetent witness in behalf of the other. . Such was the case of Rex v. Rowland (1 Ryan & Moody, 401), also cited by the defendant ; in the cases of The People v. Bill (10 Johns., 95) People v. Williams (19 Wend., 377), and McIntyre v. The People (9 N. Y., 38), and in those cases in other States which have been decided on the authority of People v. Bill (supra), such as Commonwealth v. Marsh (10 Pick, 57), and Campbell v. Commonwealth (2 Virginia Cases, 314), the witness was offered to be examined in behalf of a co-defendant. In the ease of Lindsay v. The People (supra) a nolle prosequi had been already entered in behalf of the court as against Vader, who was indicted jointly with Lindsay for murder, and who was called as a witness for the prosecution. The intimation, therefore, in the opinion of Allen, J., that a nolle proseqm as to Vader was necessary in order to enable the prosecution to avail itself of Vader’s testimony was obiter, as no such question arose in the case, and the objection of the counsel for the plaintiff in error in that case, that an accomplice in the murder was not a competent witness for the prosecution was not tenable, because Vader having been wholly discharged from the indictment, was no longer a party to the record, and was a competent witness within the rule adopted by the General Term of the first district, in The People v. Donnelly (supra). In this case, the accomplice was not only not upon trial jointly with the plaintiff in error, but had not even been arraigned on the indictment, and moreover, he was offered not in behalf of the co-defendant, but in behalf of the people. As is said in Lindsay v. The People (supra), “accomplices may in all cases, by permission of the court, be used by the government as witnesses in bringing their associates to punishment. * * * There is no practice in this State requiring a previous application or a formal order of the court to permit an accomplice to become a witness for the State.” We must follow the decision of Wixson v. The People (supra), decided by the General Term of the seventh district, which is a case directly in point, especially as it disposes of a mere technical objection to the testimony of a witness, until it shall have been directly overruled.

The counsel for the plaintiff in error makes another objection to the conviction in this case, namely : that there is a misjoinder • of counts in the indictment, and insists that the court below should have quashed the indictment for that cause, or should have compelled the prosecutor to elect upon which count the prisoner should be tried.

It is obvious that the indictment, though technically charging different felonies in the different counts, in fact relates to the same transaction, and is an attempt to describe the offense of the prisoner in different ways, in order probably to meet the possible evidence in the case as to whether the offense constituted a burglary, or only a robbery from the person. In such cases, it is held to be proper to charge the offense in this manner to meet any possible defect in the proof, and, therefore, it is a matter of discretion in the court below whether it will quash the indictment or compel the prosecutor to elect upon which count he will proceed. In Kane v. The People (8 Wend., 203, op. p. 211), the chancellor says: “In cases of felony, where two or more distinct and separate offenses are contained in the same indictment, the court in its discretion may quash the indictment or compel the prosecutor to elect on which charge he will proceed, but in point of law, it is no objection that two or more offenses of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. It therefore forms no ground of a motion in arrest of judgment, neither can it be objected by way of demurer or upon a writ of error.” Seward, Senator, who delivered the only other opinion in the case, came to the same conclusion (page 217) and tbe conviction was unanimously upheld by tbe Court of Errors.

In the People v. Baker (3 Hill, 159) tbe indictment contained three counts, one for receiving stolen goods, one for burglary and one for grand larceny, and tbe court refused to direct tbe public prosecutor to’ elect as to which charge the prisoner would be tried on, and tbe Supreme Court held that it was not erroneous, but discretionary with tbe court below. See, also, The People v. Rynders (12 Wend., 425); People v. White (55 Barb., 606).

Where tbe attempt is really made to put tbe prisoner upon trial for different felonies, the rule that a party can only be compelled to answer for one offense at a time will prevail, and in such a case, it would be proper to quash tbe indictment, or to compel tbe prosecutor to elect as to which offense tbe prisoner should be tried for — and this furnishes a good reason why tbe matter is, according to the cases cited, left to tbe discretion of tbe court. Each count in the indictment theoretically describes a different offense, but where it is apparent, “from the general tenor of tbe indictment that each count relates to the same transaction,” and that the introduction of separate counts is not for tbe purpose of proving distinct offenses, but only for the purpose of meeting possible variances, or defects of the evidence to establish some one of tbe ingredients of tbe felony as described in a particular count, then the court can properly exercise a discretion to prevent a failure of justice and treat tbe indictment as it is, in fact, an indictment for one offense, described in different ways.

It is insisted that the law as laid down and deemed settled for years, has been much shaken if not overruled by tbe case of The People ex rel. Tweed v. Liscomb (60 N. Y., 559), but in that caso tbe relator bad been tried for several different offenses, committed at different times and under different circumstances, and tbe judgment of the court was greatly in excess 'of any judgment which it had the authority to pronounce on a conviction for a single offense. In regard to the questions presented in this case, Allen, J., at page 574, says: “Whether it was error to join in tbe same indictment counts for several distinct offenses, or whether the court should have compelled tbe prosecutor to elect between tbe several counts, are not questions that can be considered upon this bearing. * * * In theory, every count in an indictment is for a distinct offense, but in fact, as is very well understood, in most cases several counts are resorted to, and tbe same offense stated in different forms and with different circumstances to meet the evidence that may be adduced upon the trial.” Again, at page 576, “ there is no objection to stating the same offense in as many different ways as may be deemed expedient. It cannot mislead the accused or embarrass him in his defense, or expose him to accumulated punishments.”

So that it is quite clear that the Court of Appeals did not intend to interfere with the rule laid down in the authorities cited and others which might be referred to, when restricted to a description in different counts, of what the courts can see from the face of the indictment or learn from the statement of the public prosecutor are intended as different descriptions of the same transaction, with a view to meet possible evidence.

So in Woodford v. The People (62 N. Y., 117). The principle, that where there is in fact, but one transaction sought to be described, it may be done in different counts, is recognized and the case of Regina v. Trueman (8 Carr & P., 727), is referred to, where an indictment consisted of five counts for arson, charging the burning of five houses belonging to different persons. It was stated in the opening, that the houses were in a row of adjoining houses, and upon an application to compel the prosecution to elect, Ekskine, J"., says : “As it is all one transaction, we must hear the evidence. * * * I shall take care, that as the ease proceeds, the prisoner is not tried for more than one felony,” and in the same case there is a reference to a case in 20th Pickersgill (356) of an indictment held good, charging burglary with an attempt to commit larceny, and also larceny as distinct offenses, and various other illustrations of the rule, adopted by our courts in the cases before cited.

Manifestly, but one transaction is intended to be described in all the counts contained in this indictment, to wit: a burglarious entry of the dwelling-house of James Wright, and stealing from him by violence, a sum of money, and no attempt was made to prove any different offense, and we think upon the authorities as well as the reason of the thing, the refusal to quash the indictment or to compel the prosecution to elect, were within the discretion of the court.

■ As only tbe two questions wbicb bave been considered are presented by tbe points wbicb tbe plaintiff in error submits, and we think neither of them presents any ground for a reversal of tbe conviction, it must be affirmed.

Judgment for tbe defendants in error, affirming tbe conviction brought up by tbe writ of error.

Present — Talcott, P. J., Smith and Meewin, JJ.

Judgment for tbe defendant in error, affirming tbe conviction of tbe plaintiff in error.


author: Smith, J.:

text:
    No. 1.
    No. 2.
    DAVID BONNELL, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY Appellant. THE SAME v. THE SAME.

      Sentence to vmprisoivment in State prison — effect of on civil rights and liabilities— 2 B. 3., 701, § 19.
    Where, after the joinder of issue in an action, the plaintiff is sentenced to the State prison for two years, the defendant is entitled to proceed in the action during said term and take a judgment by default, and such judgment will not be set aside as irregular. O'Brien v. Hagan (1 Duer, 664) limited.
    Where, in such a case, the party against whom a judgment has been recovered has a good cause of action or defense, the court may, after his release, open the default and vacate the judgment, when that can be done without prejudice to the rights of the other party.

      Semble, that section 19 of 2 Eevised Statutes (p. 701), providing that a sentence to imprisonment in a State prison for a term less than life suspends all the civil rights of the person so sentenced, although it deprives him of all rights as plaintiff in an action, does not relieve him from liability as a defendant.
    Appeals by plaintiff, respondent, from orders of tbe Oswego Special Term setting aside a judgment, in favor of tbe appellant against tbe respondent, in eacb of tbe above-entitled actions for costs.
    Tbe respondent commenced two actions against tbe appellant, July 16, 1814, to recover a penalty for fifty dollars, under tbe act of March 27,1857, and issue was joined therein about August 28,1874. After the commencement of the actions, the respondent was indicted in Oswego county for false pretences, and was tried and convicted and sentenced to the State prison for the term of two years from December 29,1874. Afterwards, the appellant noticed said causes for trial at the Oswego Circuit held January 25, 1875, and, at that Circuit, a judgment of dismissal, and for costs in each action, was duly taken against the respondent, by default, while he was in prison.

      Edm/und B. Wynn, for the appellant.
    The judgments were legal and valid, and the appellant had a right to prosecute the actions during the imprisonment of the respondent. ('Da/ois v. Buffie, 8 Bosw., 817; Same v. Same, 3 Keyes, 606; Phelps v. Phelps, 7 Paige, 150; Hoff. Oh., 109; Barb. Oh., vol. 1, p. 51; Plainer v. Sherwood, 6-Johns. Ch., 118.)

      Andrew MeCarty, Jr., for the respondent.
   Smith, J.:

The statute provides that a person sentenced to imprisonment in a State prison for life shall be deemed civilly dead (2 R. S., 701, § 20), and that a sentence of such imprisonment for a term less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power, during the term of such imprisonment. (Id., § 19.) These provisions undoubtedly deprive a person sentenced .to a State prison, either for life or for a term of years, of all rights as a plaintiff in an action, but they do not free him from all liability as a defendant in an action. He does not thereby acquire immunity from the claims of private individuals, or the necessities of public justice. ' The statute suspends his rights alone, and not the rights of others against him. Though he may not sue he may be sued and the suit may be prosecuted to judgment against him. (Davis v. Duffie, 8 Bosw., 619 ; S. C. affd., 3 Keyes, 606.) And in general, he is subject to be.proceeded against in all the modes prescribed by law to enforce civil remedies, as if he were at large. (Morris v. Walsh, 14 Abb., 387.) If the defendant, by reason of his situation, is deprived of a meritorious defense, the court may, on a proper application after his release, open the default and vacate the judgment, when it can be done without prejudice to the rights of the adverse party. (See Phelps v. Phelps, 7 Paige, 150.) But the proceedings against him will not be set aside as irregular. (Id.)

The respondent’s counsel cites the case of O’Brien v. Hagan (1 Duer, 661.) In that case, Oaklet, Oh. J., held at chambers, after consulting some of the other judges, that a sentence to imprisonment in State prison, for a term of years, of the plaintiff in a civil suit pending at the time, had the effect to abate the suit, consequently that no further proceeding could be had therein, until it was properly revived. "We do not see how that decision can be reconciled with those already cited, and so far as it is inconsistent with them we think it should not be followed.

Orders appealed from reversed, with ten dollars costs and disbursements in each case.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.