3 Lans. 80 | N.Y. Sup. Ct. | 1870
By the Court —
Some of the questions arising in this case are fully discussed in the opinion in the case of The People v. Burnside, and the doctrines there laid down are entirely applicable. But the order of the county judge in this case is based on a different ground. The order recites that proof to the satisfaction of the county judge had been produced that the commissioners had refused and willfully neglected to perform their duties as commissioners, in “refusing to sell or dispose of the capital stock of said railroad company,” &c., “ for cash according to law, for its par value, and in attempting to sell the same conditionally on credit.” The order was based in part upon the ground that the commissioners were guilty of an unlawful refusal and willful neglect of duty in refusing to sell for cash and at par, accord ing to law. In the opinion referred to, I have attempted to show that such an act of unlawful and willful misfeasance was embraced in the provisions of the act under which the proceedings were had (S. L. of 1859, chap. 384, § 5) ; and in accordance with the views there expressed, I think the county judge was authorized to make the order, if a case of unlawful refusal or willful neglect to sell for cash and at par was made out. There was evidence to show that the relators were offered cash at par for the stock and payment of the accrued interest. This offer was refused and a contract was made to sell the same, to be paid for when the stock was transferred on the books of the company, when a certain other contract was fulfilled, viz., when the stock was voted for at a future election of directors of the company in favor of certain persons named. The refusal of the offer made and the entering into a contract so clearly against the interest .of the tax-payers of the town, furnished sufficient evidence of a failure to perform their duty in refusing to sell on the most
It is urged that the dismissal of the first application made by the relators is a bar to the last one. The proceedings were dismissed upon the sole ground that the commissioners had sold the stock for cash at par, and in that respect complied with the . law which subsequently on the second application appeared to be untrue. I think the objection is not well taken. The application is in the nature of a summary proceeding under a special statute, and differs materially from those cases where a judgment is pronounced after a full trial and hearing, according to the practice of a court, or the provisions of law,' prescribing the manner and mode in which a trial or disposition of the case may be had; such as the taxation of a hill of costs (Supervisors of Onondaga v. Briggs, 2 Denio, 26), or summary proceedings to recover possession of leased premises (White v. Coatesworth, 2 Seld., 137), or a judgment upon a verdict. (Demarest v. Largo, 32 N. Y., 281.) .
ITo notice is required by the statute of the application, and it is perhaps more in the nature of a motion where leave to renew may be granted. If the judge had considered the service of the papers defective, or the papers insufficient or even fully answered, there can he no doubt but that he would have been authorized to grant leave to renew the application. Although such leave was not formally granted before the application, he had a right when it was made to hold that he would grant leave on the spot, and without making a formal order to that effect, to say that he would hear the application on
Motions in the course of practice are addressed to the discretionary power of the court, and the doctrine of res adjudícala does not strictly apply. The renewal of them is a matter of discretion, and the question of granting leave or allowing them to' be made without any leave must always rest in the judgment of the tribunal to which they are addressed, without limiting its operation to any strict rule of practice. • More especially should this be the case when the proceeding is before a local officer, relates to officers appointed by him, and no rules of practice have been established in regard to it. I think that the county judge was right, and that the order made I v him should be affirmed, but no costs should be allowed.
Order affirmed.
