4 Lans. 208 | N.Y. Sup. Ct. | 1871
By the Court
This is an action for false imprisonment, in committing plaintiff to jail in bastardy pirn ceedings. Specherman, as overseer of the poor, commenced and conducted the proceedings before defendant, Henness, a justice of the peace, who was his son-in-law, and whose wife was then living. Henness under the statute associated with himself Rossman, the other defendant, another justice of the peace. The plaintiff claims that this affinity between Specherman and Henness made the proceedings void, and,the court so held at circuit.
The statute (2 R. S., m. p. 275, § 2) declares that “no judge of any court can sit as such in any cause * * * in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.” There is no doubt that the affinity between Specherman and Henness would disqualify Henness from acting as a juror in an action where Specherman was a party.
The question, therefore, is whether an overseer of the poor, who institutes bastardy proceedings, is a “ party,” within the meaning of the statute. In order to determine this question, it is important to see what he must and can do. (1 R. S. m. p., 642, and set].)
The overseer is to apply to the justice to make inquiry (§ 5), and without his application the justice cannot act. ( Wallsworth v. McCullough, 10 Johns., 93; Sprague v. Eccleston, 1 Lansing, 74.)
When the justices shall have made auy order, any person who shall think himself aggrieved may appeal. (§ 24.) “ The court to which such appeal may he made, shall proceed to hear the allegations and proofs of the respective parties, and the party in whose favor any order was made, which shall be the subject of appeal, shall be required to substan tiate the same by evidence.” (§ 28.)
As it has been held that an appeal does not lie in favor of the overseer (People v. Tompkins Sessions (19 Wend., 154), it follows that the words,“ thq party in whose favor any order was made,” must apply to the overseer and to him exclusively. Thus the statute, in express words, denominates the overseer of the poor a party, and a party in whose fmor an order may be made.
In the case of Stowell v. Overseers (5 Denio, 98), it was held, incidentally, that the overseer could discontinue the proceedings pending an appeal; and the court speak of the proceedings as a suit discontinued by the plaintiff. (See page 101.) The overseer, therefore has the power to discontinue the proceedings as well as to institute them. In section 37 the court is authorized to award costs to the party in whose favor any such appeal shall be determined, and to any party to whom notice of appeal shall be given and not prosecuted.
Tha party to whom notice of appeal shall be given is the overseer. Thus we see that the statute in several places denominates the overseer a party; that he has power (and he alone) to institute the proceedings; to adduce testimony; to appear on the trial; to have notice of an appeal; to discontinue the proceedings, even after an appeal; to recover costs of an appeal; and that he is liable to have costs recovered against him.
In the case of the People v. Wheeler (21 N. Y., 82), the opinion of Judge Dehio holds, that the commissioners of highways are not judges, within the meaning of the disqualifying statute above cited; and that, therefore, this statute does not apply to them. But in the present case, there is no dispute that the statute applies to justices of the peace. (Edwards v. Russell, 21 Wend., 63.) The question is only whether the person who litigated before the justice was a “party.” And even in the case in 21 N. Y., just cited, the applicant for the discontinuance of a highway is spoken of as a party. But although he was a “party” to the proceedings, yet as the commissioners of highways, were not “judges” the statute which applies only to judges did not forbid their acting. And certainly, if we are to decide this case not by
Another point made by defendants is, that the court erred in charging that the plaintiff ought to have compensation enough, certainly to answer for the expenses incurred in coming into court, to obtain redress of the grievances under which he labors. To this the defendants excepted, and the court said: “ That is my opinion now, but the jury may regulate it as they choose.” To which also the defendants excepted. If this is to be construed as a positive charge, that the jury, in estimating the damages, were to take into account the plaintiff’s costs or counsel fees of this litigation, the charge would have been erroneous on principle and under the case of Hicks v. Foster (13 Barb., 663). But it does not seem necessarily to bear that construction. The plaintiff had been imprisoned, and in some way, which does not appear in the case, had obtained his liberty. He might have incurred expense in coming into court to procure his freedom from imprisonment, which would, of course, not be included in the counsel fees or costs of this action.' The court left it to the jury to regulate as they chose, and the defendant did not request any more definite charge on this point. It would have been easy to ask the court to charge distinctly that counsel fees and costs of this action should not be taken into account in estimating the damages. The remark of the court seems to have been rather an expression of opinion than a direction as to the rule of law, and this appears still moré plainly by the subsequent qualification.
A question was raised as to the liability of the defendant Rossman, but there seems to be no error in that respect. The
Motion denied.