People ex rel. Lewis v. White, 59 Barb. 666

People ex rel. Lewis v. White

59 Barb. 666 | N.Y. Sup. Ct. | 1871

By the Court, Potter, J.

There was no want of jurisdiction on the part of the justice who issued the venire, on the ground that the appeal was joint. The appeal (as it is called) returned and before us, may as well be held to be several as joint. It is all in one notice, it is true, and neither the word joint or several is employed. The word we is once used, which is sometimes held to be joint, and sometimes several; and the word undersigned is also used, which is more frequently held to mean several than joint. There is nothing in the statute directing the form of proceeding; or requiring separate action; *668or prohibiting joint action; or making the form of proceeding at any step jurisdictional.' Indeed, separate applications would seem to be superfluous, as the jury, to be drawn are, by the' 6th section of the act, to re-assess all the damages required to be re-assessed upon the same highway, for all persons aggrieved. So, though the applications may, I doubt not, be several, or each person may apply alone, yet the same jury that is drawn to re-assess the damages upon the first application, must re-assess for every other upon that road. Instead of the objection being limited to the words “joint” and “ several,” it would technically have been- better to have used' the terms “singly,” or “aggregately;” for persons may act aggregately and still singly, and not necessarily jointly, because each utters the same complaint, and the action of the jury, in re-assessing, was several.

But the relator is in error in calling this proceeding an appeal. It is not an appeal, in any sense; it is not so termed in the statute. It is like a motion- for a re-argument of the same matter before another tribunal. It is a continuation of the same proceeding, not before a higher, but a different forum or body; one is in nowise a review of the other.

In the absence of any positive directions in the statute as to, the manner of proceeding, and in the absence of any adjudicated case cited to us, to show error, it is safer for the court to hold the established rule, that where a statute -confers power and jurisdiction to act in a matter, but omits to prescribe the form of proceeding, the courts will hold that all necessary powers to carry out the provisions of the act are also granted. I think the proceeding in question might be sustained upon this ground alone, if necessary to stand upon it.

I think the relalor’s counsel is also mistaken in supposing that the question of costs cannot be regulated un- , less each person aggrieved proceeds separately. There is *669no more difficulty in regulating this in an aggregate case, than singly. The statute is broad enough to cover all questions that arise on this point. If the moving party fails to increase his assessment, he is made liable for costs; if he does increase it, the town is liable for costs. If a part of the aggrieved parties increase, and others fail to increase the assessment, only those who fail are liable. The costs are several, because the re-assessments are several, and the statute declares, “ that all persons who may be liable for costs under that proceeding, shall be liable in proportion to the amount of damages respectively assessed to them by the first assessment.”

[Third Department, General Term, at Binghamton, June 6, 1871.

I do not think the relator has shown any error that requires a reversal of the proceedings; and the writ should be dismissed, and the proceedings affirmed.

Miller, P. J., and Potter and Parker, Justices.]