7 Wend. 291 | N.Y. Sup. Ct. | 1831
By the Court,
The plaintiff in error contends that the judgment should be reversed, because, 1st. The justice was ousted of jurisdiction by the plea of title; 2d. That the case is not within the second section of the act under which the suit was brought; and 3d. If'within the act, that the declaration does not shew any penalty incurred.
The objection is, that the case now before the court is not within the act, because the decision attempted to be enforced is not the decision of the commissioners, but of the judges. The facts are, that on the 11th August, 1826, the commissioners surveyed the road and determined that the fences of the plaintiffin error were an obstruction; they stuck stakes within his lot, where the fences should be removed ; an appeal was made to the judges, who convened, and on the 27th March, 1827, modified the determination, by altering the stakes placed by the commissioners, but deciding as the commissioners did, that the fence was an obstruction, not in terms, but by the manner of altering the decision of the commissioners. On the 21st J uly, 1828, the commissioners recognized the decision of the judges as the final settlement as to where the fence should be, and required the plaintiff in error to move his fence accordingly, within 20 days from the 1st August then next. On the 12th
It may well be doubted whether this was a proper case for an appeal to the judges. In terms, the appeal is allowed from any determination of the commissioners in laying out or altering roads, or regulating any public landing or watering place not from a decision as to an encroachment; but if it be conceded that the appeal was well brought, when the decision was made, it was virtually the decision of the commissioners of highways; for the judges • act not in their judicial capacity, but as appellate commissioners. The commissioners considered the decision of the judges as their own, and to be enforced by them, and hence gave notice accordingly. Case v. Thompson, 6 Wendell, 634.
It is objected that the warning of the overseer was a nullity, as it required a compliance with the order of the commissioners, which, as to time, was impossible. As I understand the statute, no penalty was incurred until 20 days after the notice from the commissioners, and the warning by the overseer. The notice directed the occupant to remove his fence in 20 days after the 1st of August, but as there was no warning by the overseer till May following, the previous notice was not operative, so as to subject the occupant to the penalty, but as the party did not remove his fences within 20 days after the 12th May, 1829, he thereby forfeited five dollars : and for the next eight days he forfeited five dollars more ; and both were incurred before suit brought, which was on the 12th June. The declaration seems to have been framed to meet my construction of the statute, and seems to me to be right as it is, without striking out any part of it as surplusage ; at least, it is wel^ enough in a justice’s court, where pleadings are regarded with liberality, provided they apprise the opposite party of the cause of action or defence with reasonable precision.
The main point, however, remains to be considered, to wit, whether the plea of title ousted the justice of jurisdiction ? This question, , it is contended, has been decided by this court, in The People v. Onondaga C. P. 2 Wendell, 263. Admitting, as ' observed by the learned judge who delivered the opinion in that
My opinion therefore is, that the justice decided correctly in rejecting the plea of title; that the declaration was sufficient and appropriate; and that the case itself was within the spirit, if not the letter of the statute. The proceedings of the justice should therefore be affirmed.