173 N.Y. 249 | NY | 1903
It is contended on behalf of the commissioners of highways that the order appealed from should be reversed, because it did not appear in the order appointing the commissioners or in the proceedings that the commissioners appointed were disinterested freeholders.
These proceedings were instituted by Samuel D. Baker and William E. Doig, who were residents of and liable to be assessed for highway labor in the town of Fort Edward, by first serving a written application upon the commissioners of highways of the town to alter and discontinue a highway, *251
describing it, and to lay out a new highway. This the highway commissioners neglected to do, and thereupon the applicants petitioned the County Court of Washington county to appoint commissioners pursuant to the provisions of section
Section
In Matter of Beehler (3 N.Y.S.R. 486-488) it is said: "The commissioners are to be selected by the court. The court in making its selection is required to select freeholders. No evidence is required to be presented to the court before the appointment is made showing who are or who are not freeholders, but the court must ascertain and determine this fact in its own way, and should it appoint any person not a freeholder, the appointment would be set aside and vacated upon motion when that fact was made to appear." The County Court is a court of limited jurisdiction, and in special proceedings, facts must affirmatively appear which give the court jurisdiction, and in the absence of such facts jurisdiction will not be presumed, as in the case of courts having general jurisdiction. (Frees v.Ford,
In this case, as we have seen, the proceedings were instituted by a notice and a petition addressed to the County Court which stated all of the facts required by the statute. It, therefore, gave the County Court jurisdiction to make a proper order in the proceedings. It gave to the County Court jurisdiction of the persons and the subject-matter; and if the County Court thereafter made any mistake in reference to its subsequent proceedings, it was an irregularity not affecting the jurisdiction of the court. While no fact will be presumed which does not affirmatively appear giving the court jurisdiction, yet when facts affirmatively appear which do give the court jurisdiction, the judge presiding, like any other officer, will be presumed to have discharged his duty, unless it otherwise appears. The court was asked to appoint commissioners *253 pursuant to the provisions of the statute. This the court undertook to do. The statutes required the commissioners to be disinterested freeholders, residents of the county, but not of the town. None of the parties interested were permitted to make any suggestion to the court as to the persons who should be appointed, and obviously no evidence could be presented by them as to the qualification of persons whom the court should name. The duty, therefore, devolved upon the judge to ascertain the qualification of the persons in his own way, as stated in Matterof Beehler (supra). When, therefore, the order was made naming the commissioners it was in effect an adjudication that the persons appointed were eligible under the provisions of the statute. If it should turn out that the court was mistaken in reference to the qualification of either of the commissioners, it would be an error which could be corrected when the fact was made to appear, and it was not a jurisdictional defect.
In Raymond v. Bell (
In the case of Dederer v. Voorhies (
The cases of People ex rel. Ottman v. Comrs. of Highways ofthe Town of Seward (27 Barb. 94; affirmed,
The commissioners of highways submitted no evidence to the court tending to show that the commissioners appointed were not disinterested freeholders as required by the statute. The objection made to the confirmation of the report of the commissioners rested solely upon the ground that it did not affirmatively appear that they were disinterested freeholders. No objection was taken to the commissioners at the time the *255 parties appeared before them at the trial of the questions involved. No objection was taken during the trial. The objection was reserved until after a long trial involving much expense, and was then made upon the application for the confirmation of the report. We think that even if there was a defect, it not being jurisdictional was deemed waived. In Matter of N.Y., West Shore Buffalo Ry. Co. (35 Hun, 575) one of the commissioners appointed turned out not to be a freeholder. BRADLEY, J., in delivering the opinion, said: "But after jurisdiction is acquired such strict observance may be waived. The parties might dispense with the qualification of freeholder for the commissioner."
The order appealed from should be affirmed, without costs.
PARKER, Ch. J., O'BRIEN and CULLEN, JJ., concur; GRAY and BARTLETT, JJ., dissent; WERNER, J., absent.
Order affirmed.