Porter v. Purdy (29 N.Y. 106, 1864)

Mullin, J.

The attention of the learned judges by whom this case was decided in the court below, could not have been called to the case of Van Steenbergh v. Bigelow, (3 Wend. 42), or they would not have reversed the judgment of the county court. The case is directly in point, and decides the very question on which the learned judges reversed the judgment. In that case the plaintiff sued the defendant, who was agent of the Bristol Turnpike Company, in trespass, for laying the road of that company over his land without having acquired, as he (the plaintiff) insisted, the right so to do. The defendant justified under an-act of the legislature, incorporating said company. The plaintiff on the. trial proved the laying of the road over his land, and the damages sustained thereby and rested. The defendant put in evidence the act incorporating the company, and the proceedings required thereby, in order to enable the company to acquire a right to build their road over the land of individuals, and amongst other proceedings required, was the appointment by the first judge of Ulster county, if the parties could not agree on the amount of damages, of three persons as appraisers who, the act required, should be freeholders. After the defendant rested, the plaintiff offered to prove that one of the three appraisers appointed was not a freeholder. The defendants’ counsel objected to the evidence, and it was rejected. The plaintiff was non-suited, with leave to move to set it aside. Savage, Chief. Justice, delivering the judgment of the court upon the point under .consideration says: “The judge was certainly right in rejecting the proof that one of the appraisers was not a freeholder. Whether the appraisers were freeholders or not was not enquirable into collaterallyx The appointment had been made by an officer whose duty it was to have appointed freeholders and none other. If he erred in that particular, the appointment might have been examined in this court on certiorari, and if illegally made would have been set aside.”

There are certain points of difference between the case cited and the one before us, but these differences do not affect the principle which appli.es to both.

In Van Steenbergh v. Bigelow the appraisers were appointed by a judge, and not by the defendant or the company for which he acted. ' In this case the defendants themselves made the appointment. There is a principle pervading the cases in which questions of jurisdiction have arisen, and in which the effect of a want of it upon the rights of third persons not cognizant of the defect have been examined, and in which it has been held that while the general rule was, that want of jurisdiction rendered utterly void the process and proceedings of courts and officers, yet that third persons, whose duty it was to execute such process or give effect to such proceedings, could not be made trespassers by obeying such process, unless the want of it was apparent on the face of such process or proceedings; but that the officer or person who issued the void process, &c., was himself liable to the injured party for damages sustained.

In the case cited the company acted, and were compelled to act, upon the appraisal made by appraisers over whom or whose appointment they had no control, and hence it might be argued Bigelow in that case was brought within the principle which protects officers acting under like circumstances. But the nonliability of Bigelow was not put on any such ground. He was held not liable, because the appointment of the appraisers was a proceeding which could not be overhauled in a collateral proceeding, but must be, if at all, in one instituted directly for the purpose. The officer who executes process fair on its face, but issued in fact without jurisdiction, is protected, because it would be inequitable and unjust to hold him responsible for acts of others over whom he had no control, and for defects of which he had no notice. But Bigelow and those standing in his place are protected, because the error complained of is such that it cannot be reviewed in an action to which he is a party.

In the case cited, as well as in the one in hand, the proceedings were special and must conform to the requirements of the statute, or they will fail; and' hence, if the appointment of a person not a freeholder would be fatal in the one case it should be in the other; and if the error was not available in the one it ought not to be in the. other. The principle upon which the rule applied in the case cited rests would seem to be this: That when in special proceedings in courts or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act in such proceedings having particular qualifications, or occupying, some peculiar relations to the parties or the subject matter; such acts, when donej are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose, and, if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be.

There is a necessity for this doctrine, as without it it would be almost impossible ever to carry into effect special proceedings affecting property or persons. .

The case under consideration affords a very striking-illustration of the necessity of the principle for which I contend. The defendants were required to appoint freeholders, only, appraisers. This devolved on them the duty of ascertaining whether there were five freeholders in the corporation. To be. freeholders they must own an estate in fee or for life. The five who were designated