McCoy v. Curtice

9 Wend. 17

• Court: New York Supreme Court
• Decided: May 15, 1832
• Status: Published

Opinion

By the Court,

Sutherland, J.

*

It is a general rule in

relation to all public officers, that they may establish their official character, by proving that they are generally reputed to be, and have acted as such officers, without producing their commission or other evidence of their appointment. This is well established, as to all peace officers, sheriffs, constables, justices of the peace, &c. 4 T. R. 366. Potter v. Luther, 3 Johns. R. 431. Cowen’s Tr. 572, note m. 6 Binn. 88. 9 Mass. R. 231. 7 Johns. R. 549. 9 id. 125. 12 id. 296. Wilcox v. Smith, 5 Wend. 231. 16 Viner, 113, 14. In Rex v. Jones, 2 Campb. 131, a letter was permitted to be read purporting to be from the lords commissioners of the treasury, without any evidence except what appeared on the face of the letter, that they were commissioners. That, too, was a criminal case, and it was distinctly objected on the part of the defendant, that the authority of the commissioners should be shewn by producing the commission by which they were appointed. The trustees and collector of a school district are regular officers, annually chosen, with powers and duties well defined and regulated by statute; and it is not perceived why their official characters may not be shewn in the same manner as that of a justice of the peace or a constable. They are officers of almost equal notoriety, and the duties of a collector are very much of the same nature as those of a constable. Laws of 1819, p. 198, § 20 to 25. lamíndined to think, therefore, the parol evidence upon these points was admissible. Whether it was sufficient or not is a question which does not arise on this bill of exceptions. The objections are specifically to the nature of the evidence, and not to its defect or sufficiency.

This disposes of the two first exceptions. The next objection was to the introduction of the warrant, on the ground that it was signed only by two trustees, 1 am inclined to think the objection was properly overruled. Where power is delegated to two or more individuals fora mere private purpose,in no respect affecting the public, it is necessary that all should join in the execution of it. Thus arbitrators must all unite in an a ward. But in matters of a public concern, if all are present, the majority can act, and their acts will be the acts of the whole. 1 Bos. & Pull. 236. 3 T. R. 592. 6 Johns. R. 41. There can be no doubt that a contract made by all of the trustees and signed by two would bo binding, or that two could contract against the will of the third, if he was duly notified or consulted and refused to act. The convenient despatch of public business requires that it should be so. Ex parte Rogers, 7 Cowen, 526, and cases there cited. The objection here was simply that the warrant was not signed by all the trustees. There is nothing to show, or from which it is to be inferred, that all the trustees did not concur and act in the previous proceedings, and assent to the issuing of the warrant. In Yates v. Russell, 17 Johns. R. 468, which was a writ of error upon a judgment entered upon the report of referees, in an action not referable under the statute, the report was signed by only two of the referees, and one of the errors relied upon was, that it did not appear that all the referees met and heard the parties. It was held by Ch. Kent, who delivered the opinion in the court of errors, that it was to be presumed that all the referees met, as nothing appeared to the contrary; and if they did not, the objection should have been taken in the court below. That principle seems to be applicable to this case, and dispose of this point. It was also objected that it did not appear that school district No. 15 was ever laid out and recorded. The objection was removed by the subsequent evidence in the case. The record of the town of Warwick wag proc¡ucec]; by which the laying out and recording of the district was fully shown. The evidence offered by the plaintiff was properly rejected.

Judgment affirmed, with double costs.

Decided October terra, 1830.