Fowler v. Westervelt

17 Abb. Pr. 59, 40 Barb. 374

Opinion

By the Court.

Footnotes

•

*—Scrugham, J.

The amount of the claim of the plaintiffs, litigated in the justice’s court, exceeded fifty dollars, and on appeal to the County Court, the appellant was entitled to a new trial as a matter of right, not dependent upon error in the proceedings in the justice’s court. (Laws of 1862, 853, ch. 460, § 23.) He can only take his appeal hy the notice prescribed by section 353 of the Code of Procedure, and it is necessary that he state therein the grounds upon which the appeal is founded; but as the appellate court, in such cases, cannot pass upon any question suggested by the grounds of appeal, but must proceed to a new trial of the action whether they can be sustained or not, there can be no reason for requiring particularity in their statements, and an allegation that the judgment was against law and evidence, is therefore on an appeal in such cases, a sufficient compliance with the requirement that the grounds of appeal shall be stated in the notice.

The motion for nonsuit in the County Court on the grounds that the plaintiffs had sued as individuals and not as commissioners of highways; and that the complaint does not aver that the plaintiffs are commissioners, was properly denied. It was founded upon an alleged inaccuracy in the complaint, and the objection should have been made in the justice’s court, where, if necessary, the complaint might have been amended. Applying the rule that pleadings in justice’s courts are to be liberally construed, and are not required to be in any particular form, but are sufficiently definite, if they are such as to enable a person of common understanding to know what is intended; it will be found that the complaint is not open to this objection.

• The words, “ commissioners of highways,” are affixed to the names of the plaintiffs, in the title. It is true that this is merely “ descriptiopersonarum,” and following the authority of Gould a. Glass (19 Barb., 119), the complaint would be bad if it did not, in addition to this, contain an averment that the plaintiffs weré commissioners of highways. In this complaint, however, the title gives the names of the plaintiffs, with this description of them as commissioners of highways, and, in the body of the complaint, it is averred that “ the plaintiffs, commissioners of high ways, complain.” This sufficiently indicates the character in which they complain, and shows that the claim is made by them as officers and not as individuals. This case is distinguished from that of Gould a. Glass, as there were no words in the body of the complaint, in that case, indicating that the plaintiffs sued in their official capacity.

The principal question presented on the appeal is, as to the right of commissioners of highways to claim from an overseer, before his accounting at the end of the year, commutation-money, received by him from a corporation whose principal office is not situated in their town.

An overseer of highways has a right to apply and expend all commutation-moneys received from individuals residing in his district, in the improvement of the roads and bridges in that district; for the statute directs that it be expended there; but he has no right, without authority from the commissioners, to expend any part of the commutation-money received from moneyed or stock corporations; for the commissioners are given control over such money, and may expend it in any district in the town—the law intends that they shall exercise their judgment and discretion as to its application, and this could not be done if the overseer who receives it should be allowed to expend it in his district without authority from them. It is to provide against this that the statute authorizes the commissioners to demand and receive it from any overseer-to whom it may have been paid. (Laws of 1837, 488, ch. 431, §3.)

The money may be paid in the first instance to one of the commissioners; if it is paid to an overseer, he receives it for them, and it is his duty to pay over to them. Failing to perform this duty, they are entitled to demand it, and the demand in this case, we think, was sufficiently proved.

It is said that the commissioners assessed the real estate belonging to the Hudson River Railroad Company lying in the district, as lands of non-residents, and therefore that section 3 of chapter 431 of Laws of 1837, does not apply to the commutation-moneys received from them, but that under 1 Rev. Stat., 509, § 35, it must be applied by the overseer to the improvement of the roads in his district. ‘ Some force is given to this suggestion by the fact that the entry in the list made by the commissioners, and by them delivered to the overseers, is as follows: “H. R. R. Road, 273.”

It is conceded that the initial letters and the word “ road” are to read as the “ Hudson River Railroad.” This is not the legal name of the corporation, but it is one often employed to designate it; and that it was used by the commissioners with that intention, rather than as a description of the land of the company, designing to assess it as the lands of non-residents, is apparent from the fact that it is not such a description of nonresident land as by law they are required to give. (1 Rev. Stat., 506, §§ 22-24.)

Moreover, it was the duty of the commissioners in making the estimate and assessment of the residue of the highway labor to be performed in their town, after assessing at least one day’s labor upon each male inhabitant above the age of twenty-one years, “ to include among the inhabitants of such town among whom such residue was to be apportioned all moneyed or stock corporations, which appeared on the last assessment-roll of their town, to have been assessed thereinand the Hudson River Railroad Company was one of the corporations which so appeared.

The case decided in this district (People on rel. Hudson River R. R. Co. a. Pierce, 31 Barb., 139), cited by the appellant as authority that the commissioners are to be guided in their assessment by the manner in which the assessors had made their assessment, is equally authoritative to the point that the commissioners must assess all moneyed and stock corporations which they find assessed on the last assessment-roll of the town, as inhabitants thereof, without regard to the place of their actual legal residence. It does not appear from the assessment-roll that the lands of the Hudson River Railroad Company were assessed as lands of non-residents. Such lands are to be assessed by description and not in the name of the owner; and the . quantity contained in each lot is to be stated; and although the assessment is not in all respects such as is required to be made of the land of residents, it more nearly resembles that than an assessment of non-resident lands.

'Nothing can be presumed from the position of the assessment on the roll, for it is neither among the assessments of residents . nor among those of non-residents, but.follows both.

We find no error in the proceedings in the County Court which will authorize a reversal of the judgment.

The judgment of the County Court should be affirmed with costs.

Present, Brown, Scrugham, and Lott, JJ.