In re Board of Water Supply

141 N.Y.S. 575

• Court: New York Supreme Court
• Decided: January 18, 1913
• Status: Published

Opinion

COCHRANE, J.

In 74 Misc. Rep. 146, 134 N. Y. Supp. 36, it was held by Mr. Justice Ploward that the terms of commissioners of appraisal expire one year and eight months from the time of filing their official oaths. The oaths of the present commissioners were filed July 6, 1911, and under the authority cited their terms will expire Marqh 6, 1913. An order appointing a commissioner to fill the vacancy herein would necessarily be dependent on another order of the court granting an extension of eight months after one year, under section 14 of chapter 724 of the Laws of 1905. It would be useless, however, to grant such order of extension, if for any reason the work 'of the commission could not be completed and their report filed within the time required.

The court should not make a useless or futile order. It seems quite clfear that the intervening time between now and March 6th next is too brief for a new commissioner to properly perform and conclude his duties within that period. At least there is too much doubt as to his ability to do so properly. The counsel for the city in his affidavit says:

“The city is unwilling to stipulate before a new commissioner the testimony already taken, since the city must insist upon all the commissioners who are to pass upon this, claim seeing and hearing the expert witnesses, that they may judge of their qualifications and credibility. * * * The questions of law involved in this case are important. The amount of damages testified by claimants’ witnesses is in excess of $1,000,000.”

It seems to me, therefore, unwise to appoint a commissioner at this late date. The present commissioners are not responsible for the vacancy, and have moved at the earliest opportunity under section 12 of the act after the vacancy occurred; but, for the reason stated, I think the application should be denied.