Ex parte Bennett

3 Denio 175

• Court: New York Supreme Court
• Decided: June 15, 1846
• Status: Published

Opinion

By the Court, Jewett, J.

By the revised statutes, (1 R. S. 484, § 90,) it is provided that “ If the moneys apportioned to a district, by the commissioners of common schools, shall not have been paid, it shall be the duty of the trustees thereof, to bring a suit for the' recovery of the same, with interest, against the commissioner in whose hands the same shall be, or to pursue such other remedy for the recovery thereof, as is or shall be given by law.” Section 124 of the school act, (1 R. S. 2d ed. p. 481,) as that section stands amended by the act of 1830, enacts that “Any person conceiving himself aggrieved” (among other things) “ concerning any other matter under the present title, may appeal to the superintendent of common schools, whose decision thereon shall be final.”

Under this provision, it is plain, as I think, that the controversy between the trustees of this district and Burch, one of the commissioners of common schools of New Berlin, in regard to the paying by the latter of the money in his hands to the former, was a matter which was the subject of an appeal to the superintendent of common schools. That provision was intended as a cheap and expeditious mode of settling most, if not all of the difficulties and disputes arising in the course of the execution'of the law organizing and regulating common schools. (Easton v. Calendar, 11 Wend. 91.) By the following provision,, the legislature has virtually declared, that where a party will forego that convenient method of adjusting such a controversy as the present,, and resort to the ordinary courts, it shall be at his own expense as" regards costs. “ In any suit which shall hereafter be commenced against commissioners of common schools, or officers of school districts, for any act. performed by virtue of, or under color of their offices, or for any refusal or omission to perform any duty enjoined by law, and which might have been the' subject of an appeal to the superintendent, no costs shall be allowed to the plaintiff in cases where the court shall certify that it appeared on the trial of the cause, that the defendants acted in good faith ; but this provision shall not extend to penalties, nor to suits or proceedings to enforce the decisions of the superintendent.” (Stat. 1841, p. 242, § 33.) The action in this case was confessedly brought against the defendant for a refusal or omission' to perforar a duty enjoined on him by law, as a commissioner of common schools; and not for a penalty, orto enforce the decision of the superintendent; and the court certified that it appeared on the trial of the cause that the defendant acted in good faith.. From these provisions of the statute, it seems to me to be obvious, that the plaintiffs were not entitled to recover any costs of the suit in the. common-pleas. Consequently, that court committed no error in ordering the judgment record- to be corrected by striking out the clause - adjudging costs-against the defendants.

Motion denied.