In re Opening of Ogden Street — 43 N.Y. St. Rep. 422

Majority

p. 422

In the Matter of Opening, etc., of Ogden Street, in the City of Middletown.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Eminent domain—Commissioners—Disqualification—Code Civ. Pro., §46. • '

Three commissioners to appraise and assess the expense of a street extension were appointed under chap. 535, Laws 1888, which requires only that three disinterested persons be appointed. Held, that § 46 of the Code had no application to such commissioners, and that a commissioner did

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not cease to be disinterested merely by reason of standing in the relation, of brother-in-law to a person whose interest was likely to be affected by the proceeding.

2. Same.

Section 46 of the Code does not include commissioners among and along with judges and officers exercising judicial or quasi judicial functions.

Appeal from order of the county judge of Orange county removing a commissioner appointed in this proceeding.

This proceeding was commenced to condemn lands for the extension of a street in the city of Middletown, and three commissioners, including Henry W.' Wiggins, were appointed to appraise and assess the damages and benefits. Pending a hearing before the commissioners, and during an adjournment, motion was made and granted, to remove Wiggins on the ground that his wife and the wife of one Boak were sisters, and that Boak was interested in land beyond the extension, and therefore possibly liable to assessment, and that therefore Wiggins was disqualified to act as commissioner.

The following is the opinion of the county judge:

Beattie, J.—The statute forbids a judge from sitting or taking part in the decision of any case or matter, if he is related by consanguinity or affinity to any party to the' controversy within the sixth degree. Code, § 46.

The statute is simply an extension of the common law maxim that “ no man can be judge in his own case.” Broom’s Legal Maxims, 119.

It is true that ordinarily the statute applies solely to judges eo nomine. People v. Wheeler, 21 N. Y., 86 ; People ex rel. Howlett v. Mayor, etc., 63 id., 291.

It has been held, however, “ that where the persons are not judges or justices in name, then the inquiry is, whether they are acting judicially in the proper sense; that is, whether they are substantially a court.” Foot v. Stiles, 57 N. Y., 407 .

The commissioners appointed in this matter are officers created by the constitution. Matter of Ryers, 72 N. Y., 1 .

Any attempt by the legislature to vest in any other court or tribunal the authority given to such commissioners would be unconstitutional. Matter of the Village of Middletown, 82 N. Y., 196 .

The commissioners are public officers appointed to discharge important j udicial functions; they are to hear the parties, take evidence and make determinations. Matter of Kendall, 85 N. Y., 302 ; Foot v. Stiles, 57 id., 407 .

It is positively alleged in the moving affidavit that Mr. Boak has a partnership interest in the lands affected by this proceeding. The allegation is not denied. It follows, therefore, that as the co-partners of Mr. Boak are parties to the proceeding because of their interest in the lands, he is also a party.

It is conceded that Mr. Boak and Mr. Wiggins married sisters. They are therefore related to each other within the degree named in the statute. Paddock v. Wells, 2 Barb. Ch., 332 .

The rights of the public and of individuals are dependent upon

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the regularity and validity of such proceedings. I think the objection would be fatal to any determination of the commission, and a commissioner should be appointed in the place of Mr. Wiggins.

William F. O'Neill, for app'lts ; S. S. Oowdey, for resp't.

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 had previously been appointed by the said county court, for the reason that Wiggins was a brother-in-law of one A. Y. 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 Middletownand in § 7 of title 6 of this act the appointment of three disinterested freeholders is required. No 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 § 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 the Matter of Dodge & Stevenson Mfg. 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. The People v. Wheeler, 21 N. Y., 82 ; Foot v. Stiles, 57 id., 399; Matter of Southern Boulvard, 3 Abb. Pr., N. S., 447; The People v. The Mayor, 63 N. Y., 291 .

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The order appealed from should, therefore, be reversed, with costs and disbursements of the appeal.

Dykman and Pratt, JJ., concur.