Metcalf v. Garlinghouse

40 How. Pr. 50

• Court: New York Supreme Court
• Decided: March 15, 1870
• Status: Published

Opinion

By the court, Johnson, J.

The appeal is from an order of the county court, dismissing an appeal to that court, by the appellant, from the judgment in a justice’s court against him, in favor of the respondent. The notice of appeal was served upon one of the respondents only; but was correctly served in all other respects. The appeal was dismissed in the county court on that ground.

The Code provides, among other things, that notice of appeal, must be served upon the respondent, (Code, § 354.) This notice must be in writing, and is in the nature of a process, and its due service is a matter of the first importance, because upon that, depends the jurisdiction of the appellate court, (People agt. Eldridge, 7 How., 108; 2 Wait’s Law and Prac., 781.) The question then arises, whether a service upon one member of the board of commissioners, is a sufficient service upon the respondents. It is clear, I suppose, that a service of process upon one of the members, would not be sufficient to constitute the commencement of an action against the board. And in the case of Board of Excise agt. Sackrider, (35 N. Y., 154,) it was held, that one member of the board without the assent and concurrence of the others, could not employ an attorney and authorize him to commence a particular action ; and that the board could not employ an attorney, and delegate to him authority, to prosecute any person he might choose to prosecute for a violation of the excise law. The principle asserted in that case is the familiar one, that where power is delegated to several to be exercised for the public good, they must all confer together, and determine what shall be done, by majority, or unanimously, and cannot delegate this power of determination to another; unless the notice of the appeal was served upon the respondents, the appeal was properly dismissed. It is said on the part of the appellant, that the commissioners are constituted a board, and service upon one, is service upon the board, which is the respondent. But the board is composed of three persons, neither one is the board nor any member, short of the whole. The three constitute the board, and the service to be upon the board must be upon the three persons who constitute it. It is not an artificial body, like a corporation. It is a quasi corporation only, like overseers of the poor, commissioners of highways, and the like. It is an official body, merely of which each member is an essential, constituent part, and as an act by one member, without the authority and consent of the others, is not the act of the body, but is as no act, in respect to the body. So a transaction between a third person and one of the members, or the service of a notice, by the former upon the latter is equally void and, of no effect, as regards the official body. It was decided in the case of The People agt. Lawrence, (54 Barb., 589,) that upon an appeal from an assessment of damages by the highway commissioners, notice must, as a condition precedent to the appeal taking effect, be served upon all the commissioners. That where there was more than one commissioner, service of the notice upon one only, was a nullity and conferred no jurisdiction upon the appellate tribunal. This decision, I think, covers this case. I am of the opinion, therefore, that no notice of the appeal in this case, has been served upon the respondents, within section 354 of the Code, and that the appeal was properly dismissed.

Order affirmed, with costs of the appeal.