In re Constant Webster

106 A.D. 360, 94 N.Y.S. 1050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Chester, J.:

By chapter 91 of the Laws of 1818 the town of Ghent was formed from parts of the towns of Claverack, Kinderhook and Chatham. The 5th section of that chapter contained the following provision: “ And be it further enacted that it shall be the duty of the board of supervisors of the' county of Columbia at their next session to appoint three respectable freeholders béing respectively inhabitants of the said county not residing in either of the said towns of Kinderhook, Claverack and Chatham, or the town hereby erected, whose duty it shall be to examine into the number, state and extent of the bridges within the territory now constituting the towns of Chatham, Claverack and Kinderhook, and if they shall be of opinion that the burthens of the said towns and the town hereby created arising from the support of the said bridges are unequal, that then in such case it shall be the duty of the commissioners to. equalize the said bridges among the said several towns, particularly designating the same and by which town they are thereafter to be supported, and to make return of their proceedings .at the next Court of Common Pleas of the said county after the same shall have been completed, who may at the instance of either party in their judgment re-examine the same and affirm or alter the decision of the said commissioners, and the decision of the said court shall be final and conclusive; and that it shall be the duty of the several towns to support the said bridges with the support of which they shall be thus charged; provided, that no judge residing in either of the towns affected by this act, shall sit in judgment on any questions growing out of this act, nor shall the supervisors of the said respective towns interested in this act, be entitled to vote on the appointment of the commissioners directed by this section to be made.”

When-this ease was here on an appeal from an order requiring the town of Kinderhook and its commissioner of highways to unite with the town of Chatham in the repair of this bridge it was held in reversing such order that the saving clause contained in section 5 of chapter 21 of the Laws of 1828 (second session, bound with Laws of 1829), which was the general repealing act following the enactment of the Revised Statutes of 1828, was effective to preserve to the town of Kinderhook whatever rights or relief from a specific burden, if any, it had acquired by chapter 91 of the Laws of 1818, and - proceedings taken under it. .(Matter of Webster, 77 App. Div. 560.)

We may, therefore, confine our inquiry to the question whether the town of Kinderhook, by proceedings duly had under the act of .1818 has been relieved from the burden of repairing or rebuilding the bridge in question, and the determination of that question involves consideration of the correctness of the rulings of the learned referee as to the admission of evidence upon the hearing before him. He received over the objection of the town of Chat-ham from a book produced by the county clerk purporting to be minutes of the board of supervisors of Columbia county held on October 9, 1818, a resolution of such board appointing three commissioners under the act; also, certain records from the record books of the towns of Iiinderhook and Grhent purporting to be copies of the report of such commissioners, and also .a map produced from the files of the county clerk’s office for the purpose of identifying the bridge in question as the one referred to in the map. of said commissioners.

The proceedings under the act of 1818, sought to be proven, took place eighty-five years prior to the hearing -before the referee and the rules of evidence concerning ancient documents were, therefore, applicable to the case. The general rule is t-liat such a document, if it comes from a custody which the court deems proper and is itself free from any indication of fraud or invalidity, proves itself. (1 Greenl. Ev. [15th ed.] § 21; Steph. Dig. Ev. art. 88; 2 Am. & Eng. Ency. of Law [2d ed.], 324-326.) The resolution of the board of supervisors appointing commissioners was contained in a book produced by the county clerk of the county who testified that it was the records of such board for 1818; that he found it deposited among his records, and that the older records of the board were in Iiis custody as county clerk. - It is true that boards of supervisors have and have had for many years clerks of their own who, are and were required by law to keep a record of the proceedings of the board and to keep its books and 'papers open to public inspection (Const. 1777, § 29; R. L. 1813, chap. 49, § 4 [2 R. L. 138]; Laws of 1820, chap. 230 ; 1 R. S, 367, §§ 9, 11; County Law [Laws of 1892, chap. 686], § 50), yet these officers change frequently. The location of their offices often follows the individual who for the time being holds the office and may change as often as there is a change in the officer. The county clerk’s office has a fixed location for the preservation of county records, and we are not prepared to say that his office is not a proper place for the preservation of these ancient records. On the other hand, we think such custody by the county clerk was reasonable and proper, under ¡the circumstances appearing here and .that the referee properly received the resolution in evidence without other .proof than that mentioned.

The record received in evidence by the referee from the books of the town clerk of the town of Ghent purported to be that of a transcript of a.certified copy of the report of the commissioners appointed under the act of 1818 to the Court of Common Pleas of the county of Columbia. The record contains a copy of a certificate of the county clerk of Columbia county under date of April 27, 1829, certifying that the report is a copy of the report of thecommissioners respecting bridges in Ghent, Claverack, Kinderhook and Chatham, filed in the office of the county clerk on the 19th day of February, 1819, and the entire record is certified under the date of June 5, 1885, by-the person shown by the records of the town of. Ghent to have been the town .clerk of the town at that time “ to be a true copy from the original report.” The record itself, therefore, is clearly an ancient One, and the rules of law respecting ancient documents ar.d records apply. The record, however, was secondary evidence, but a proper foundation had been laid for the introduction of such evidence. The law of 1818 required the commissioners appointed thereunder to make return of their proceedings at the next Court of Common Pleas Of said county after the same shall have been completed. The clerk of Columbia county was the clerk of that court, and it was admitted that the present clerk of that county had made diligent search in his office for'the report Of these commissioners, and that he was unable to find it there. The presumption is that the commissioners made and filed their report as required by law. That presumption is strengthened by the certificates above referred to, that they did make and file it in the county clerk’s office, and it was, therefore, proper on showing its loss to receive secondary evidence of the existence of the "report and its contents. • (Steph. Dig. Ev. art. 71, subd. c; Mandeville v. Reynolds, 68 N. Y. 533.)

The report shows among other things that the commissioners had unanimously adjudged and determined, in order to equalize the burdens arising from the support of bridges between said several towns in pursuance of said act of the Legislature, that the town of Ghent should, be charged with the support and maintenance of the west half of the bridge crossing the Klinekil’l creek near the house of John E. Vosburgh and that the town of Ghent forever exonerate and bear harmless the towns of Claverack and Iiinderhoolc from any expense or .burden arising from the building and support thereof.

The record received from the minute book of the town of Kinderhook purported to be that of a certificate signed by the commissioners appointed under the act of 1818, certifying, among other things, that they had charged the town of Ghent with the support of the west half of .the bridge over the Klinekill creek near the house of John E. Vosburgh and have ordered that said town of Ghent forever exonerate the said towns of Claverack and Kinder-hook from all expense arising from the support thereof. This record is certified by the assistant town clerk of that town as having been recorded therein under date of the 14th (or 19tli) day of December, 1818, and for the reasons above given was properly received as an ancient record.

The map which Was received in evidence by the referee was from the files of the county clerk and bears the indorsement of the county clerk as having been filed in the office in January, 1802. It purported to have been a map of the division of the estate of the late Everett Vosburgh, deceased, among his children and purports to have been signed by commissioners in partition of that estate. It is not doubted that the map came from proper custody and its antiquity sufficiently proved the signatures of the commissioners by whom it purports to have been 'made. (People v. Denison, 17 Wend. 315.) The only purpose of the map was to identify the location of the bridge in question and it was properly receivable for that purpose.

It is' admitted by the town of Chatham and its commissioners of highways that for many years the bridge in question has been supported and maintained entirely at the joint expense of the towns of Chatham and Ghent, each bearing one-half part of the expense of such repairs and without expense to the town of Kinderhook. This admission shows that these towns have been acting exactly in accordance with the requirements of the report of the commissioners under the act of 1818, and these facts together with the legal presumptions that the commissioners in question were duly appointed under that act and that they possessed all the qualifications required thereby, render it clear that if we are right in what we have said concerning the correctness of the referee’s ruling as to the admissibility of evidence his conclusion that the town of Kinderhook is exonerated from contributing to the maintenance of the bridge is entirely correct.

The order confirming the referee’s report should, therefore, be affirmed with costs.

Order unanimously affirmed, with costs.