In re Baker

• Decision Date: 13 January 1903
• Citation: 65 N.E. 1100,173 N.Y. 249
• Parties: In re BAKER et al.
• Court: New York Court of Appeals Court of Appeals

173 N.Y. 249

65 N.E. 1100

In re BAKER et al.

Court of Appeals of New York.

Jan. 13, 1903.

Appeal from supreme court, appellate division, Third department.

In the matter of the application of Samuel D. Baker and others to lay out a highway in the town of Ft. Edward. From an order of the appellate division in the Third judicial department (69 N. Y. Supp. 1128), which affirmed an order of the Washington county court affirming the report of the commissioners, the town and others appeal. Affirmed.

Gray and Bartlett, JJ., dissenting.

Lewis E. Carr, Edgar Hull, and Willard Robinson, for appellants.

Fred A. Bratt and John B. Conway, for respondents.

HAIGHT, J.

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 Ft. Edward, by first serving a written application upon the commissioners of highways of the town to alter and discontinue a highway, 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 84 of the highway law to determine the necessity of the proposed highway, and the uselessness of the highways proposed to be discontinued, and to assess the damages pursuant to the provisions of section 83 of the highway law. Thereupon the county court made an order reciting the presentation of the petition pursuant to section 83 of the highway law, praying for the appointment of commissioners pursuant to section 84 of the law, and concluded by appointing three persons, naming them, commissioners, ‘for the purposes above described, and in pursuance of the statute in such case made and provided, to hear, try, and determine all questions involved, and report thereon as required by law.’ Thereupon the commissioners so appointed took the oath of office prescribed by the constitution, and gave the notice required by the statute of the time and place for the hearing of the case. Upon such hearing the commissioners of highways of the town, with other persons, appeared, and took part in the trial of the questions involved. A large amount of testimony was taken, and, after the proofs were closed, the commissioners made their report in favor of the petitioners, directing the laying out of the new highway, and assessing the damages therefor. Application was then made on behalf of the petitioners to the county court for a confirmation of the report, and upon such hearing the commissioners of highways for the first time raised the question that the record did not show that the commissioners were freeholders.

Section 84 of the highway law (Laws 1890, c. 568), so far as is material upon the question under consideration, provides as follows: ‘Upon the presentation of such petition, the county court shall appoint three disinterested freeholders, who shall not be named by any person interested in the proceedings, who shall be residents of the county, but not of the town wherein the highway is located, as commissioners to determinethe questions mentioned in the last section.’ It will be observed that this provision of the statute does not prescribe the form of the order that shall be made, or specify what it shall contain; but it does require that the appointment of commissioners shall be made by the court, that they shall not be named by any interested person, and that they shall be disinterested freeholders and residents of the county, but not of the town in which the highway is sought to be laid out. In Re Beehler, 3 N. Y. St. Rep. 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, 6 N. Y. 176;Thomas v. Harmon, 122 N. Y. 84, 25 N. E. 257;Gilbert v. York, 111 N. Y. 544, 19 N. E. 268.

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 commissionerspursuant to the provisions of the statute. This the court undertook to...