In re City of Middletown

17 N.Y.S. 744, 70 N.Y. Sup. Ct. 188, 43 N.Y. St. Rep. 422, 63 Hun 188, 1892 N.Y. Misc. LEXIS 492

• Court: New York Supreme Court
• Decided: February 8, 1892
• Status: Published

Opinion

Barnard, P. J.

This is an appeal from an order of the county judge of Orange county, removing one Henry W. Wiggins from his office as commissioner in the above-entitled proceeding, to which said office he has previously been appointed by the said county court, for the reason that Wiggins was a brother-in-law of one A. V. Boak, who was a silent partner with the firm of Bull & Youngblood in the ownership of certain lands affected, or likely to be affected, by the said condemnation proceedings. The appointment of Mr. Wiggins as one of the three commissioners was made under chapter 535 of the Laws of 1888, (and the subsequent amendments thereto,) entitled “An act to incorporate the city of Middletown,” and in section 7 of title 6 of this act the appointment of three disinterested freeholders is required. Ho further qualification is demanded of the commissioners except that they shall be disinterested; and we are of the opinion that the county judge of Orange county erred in holding that section 46 of the Code of Civil Procedure applies to commissioners of this nature, or that by reason of standing in the relation of brother-in-law to a party whose interest is likely to be affected a commissioner thereby ceases to be disinterested, without proof of some direct interest of his own in the affair. In Re Dodge & Stephenson Manuf’g Co., 77 N. Y. 101, the learned court, in its opinion, says: “This language does not seem appropriate to such a case as the present, but rather to a case where there are parties adverse to each other, or at least where some question is to be determined between two or more parties; but, passing this question, it is very certain that to exclude a judge from sitting in any cause by reason of kinship such kinship must exist between him and some person who is actually a party to the cause. It is not enough that he is related to some person not a party, who is or may be interested in it, or affected by his order. Interest on the part of a judge disqualifies him from sitting, but interest on the part of a relative of the judge does not.” We are furthermore of the opinion that the section of the Code referred to does not include commissioners among and along with judges and officers exercising judicial or quasi judicial functions. This commission was solely for the purpose of looking into the general necessity and bearing of the proposed street extension, and their decision was subject to the subsequent scrutiny and oversight of the court, both as to the amount of damages and in every other respect. This provision of the Code needs to be strictly construed, as under a liberal construction it could be made to apply to almost every class of court appointees or elective officers of towns or municipalities exercising a power in any respect resembling the judicial. People v. Wheeler, 21 N. Y. 82; Foot v. Stiles, 57 N. Y. 399; In re Southern Boulevard, 3 Abb. Pr. (N. S.) 447; People v. Mayor, 63 N. Y. 291. The order appealed from should therefore be reversed, with costs and disbursements of the appeal.

All concur.