Beardslee v. Dolge

• Decision Date: 09 October 1894
• Parties: BEARDSLEE et al. v. DOLGE.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 160

38 N.E. 205

BEARDSLEE et al.

v.DOLGE.

Court of Appeals of New York.

Oct. 9, 1894.

Appeal from supreme court, general term, fourth department.

Action by Helen C. Beardslee and another against Henry A. Dolge. From a judgment of the general term (25 N. Y. Supp. 1125, mem.) affirming a judgment for defendant, plaintiffs appeal. Reversed.

Chas. E. Snyder, for appellants.

Edward A. Brown, for respondent.

BARTLETT, J.

This is an appeal from the general term, fourth department, affirming a nonsuit at circuit. This action is brought to recover damages for a false return to a writ of certiorari made by the defendant when acting as highway commissioner of the town of Manheim, Herkimer county. The plaintiffs claim that the defendant, as such highway commissioner, made an order, without jurisdiction, locating a highway, as altered, through their barnyard, the center line being 25 feet from the barn. The plaintiffs applied for a writ of certiorari on the ground that it appeared ‘upon the face of said proceedings' that the highway was located through their barnyard. The writ issued, commanding the defendant to return the proceedings, with all things appertaining thereto. The defendant, as such highway commissioner, made return to the writ; attaching thereto all the proceedings in altering and locating the highway, and stating ‘that none of said alteration and highway proposed passes through the buildings or barnyard of Helen C. Beardslee and Guy R. Beardslee, nor do they pass through any yards of the said Beardslee.’ The general term affirmed the proceedings (45 Hun, 310), and this court affirmed without an opinion (110 N. Y. 680, 18 N. E. 483). This disposition of the proceeding was due to the fact that the language of the return, already quoted, was held in answer to plaintiffs' contention that the highway ran through their barnyard. The hearing was upon the writ and the return; the appellate courts holding the latter conclusive. The plaintiffs subsequently obtained a perpetual injunction against defendant's successor in office, prohibiting the opening of the highway. Later, this action to recover damages for the false return was brought, and two trials have been had. At the first trial the plaintiffs recovered a verdict, but the general term reversed the judgment. At the second trial, plaintiffs were nonsuited, the general term affirmed the judgment, and the present appeal was taken.

At the last trial the plaintiffs offered to prove that the statement in the return that the highway did not pass through their barnyard was not true, and that they were damaged in the amount stated in the complaint. The court refused to receive the evidence, and for the purposes of this appeal the facts stated in the offer of proof must be taken as true. Rehberg v. Mayor, etc., 91 N. Y. 137-141;McNally v. Insurance Co., 137 N. Y. 389, 33 N. E. 475.

The learned general term seems to have proceeded upon the theory that the certiorari proceeding was final, determined the rights of all parties, and that the adjudication cannot be attacked collaterally in this action. This court, having heard the certiorari proceeding on the writ and return, and having no authority to look into the facts, made a proper disposition of the matter upon the record as it then stood; but there is nothing in the decision of that appeal which prevents the plaintiffs from showing that the defendant, as a highway commissioner, acted without jurisdiction, and made a false return when he stated that the proposed highway did not run through the barnyard of the plaintiffs. Highway commissioners, in laying out a highway, exercise a special and limited jurisdiction; and although it may be presumed, until the contrary appears, that they have acted legally, it is quite clear their acts may be impeached by showing that they exceeded their powers. Ex parte Clapper, 3 Hill, 461;Cagwin v. Town of Hancock, 84 N. Y. 532. Without the consent of the owner no road can be laid out ‘through any buildings, or any fixtures or erection for the purposes of trade or manufactures, or any yards or enclosures necessary for the use and enjoyment thereof.’ 1 Rev. St. 514, § 57; 2 Rev. St. (8th Ed.) p. 1372, § 57. The statute expressly deprives the commissioners of jurisdiction where the road passes through a yard, and provides for a proceeding before the county judge to be confirmed by the general term of the supreme court. It has been held that commissioners laying out a highway through a yard, etc., were liable to the owner in trespass. Clark v. Phelps, 4 Cow. 190. This case proceeds upon the theory that commissioners acted wholly without jurisdiction. People v. Goodwin, 5 N. Y. 571. A commissioner of highways is not a judicial officer, in the sense that he is entitled to the common-law protection against a civil action for his misconduct in office. People v. Wheeler, 21 N. Y. 82. When called upon to make his return to the writ of certiorari he acts as a ministerial officer. It is an established rule in this state that where an individual sustains an injury by misfeasance or nonfeasance of a public officer who acts contrary to, or omits to act in accordance with, his duty, an action lies against such officer by the party injured. Bryant v. Town of Randolph, 133 N. Y. 75, 30 N. E. 657;Adsit v. Brady, 4 Hill, 630;Houghton v. Swarthout, 1 Denio, 589;Hoover v. Barkhoof, 44 N. Y. 113;Clark v. Miller, 54 N. Y. 528;Wilson v. Mayor, etc., 1 Denio, 595, 599; Rex. v. Mayor, etc., Doug. 149; Rector v. Clark, 78 N. Y. 21.

The official determination of the defendant as to the fact upon which his power to act depended is not conclusive, and, if the fact does not exist, his decision that it did does not establish jurisdiction. In re New York Catholic Protectory, 77 N. Y. 342;Dorn v. Backer, 61 N. Y. 261. Where there is a want of authority to hear and determine...