
    FOWLER a. WESTERVELT.
    
      Supreme Court, Second District;
    
    
      General Term, Oct., 1863.
    Justices’ Courts.—Appeal.—New Trial.—Averment of Representative Capacity.—Commissioners of Highways.—ComMÜTATION-MONEY.-OVERSEER OF HIGHWAYS.-FORM OF ASSESSMENT.
    Under section 352 of the Code, as amended in 1862,—which gives a new trial in the County Court, upon an appeal from a justice’s court, when the amount litigated exceeds fifty dollars,—the new trial in the County Court is a matter of right, not to he withheld for any want of particularity in the statement of the grounds of appeal.
    
    Thus, a statement in the notice, that the judgment appealed from was against law and evidence, was Held, sufficient to sustain the appeal.
    An objection to the form of the 'complaint, not taken before the justice, cannot be raised before the County Court on the new trial provided for by section 352 of the Code of Procedure.
    In actions brought by the plaintiff in a representative capacity, an averment in the body of the complaint of such representative capacity, and also that the action is brought by him in such capacity, is sufficient to sustain a recovery in that capacity.
    In an action by “F. H. & J., commissioners of highways,” the complaint commenced: “The plaintiffs, commissioners of highways, complain.” Held, that a cause of action in the plaintiffs, as commissioners, could be proven.
    Commissioners of highways are entitled to claim from an overseer, before his annual accounting, the commutation-money received by him from a corporation, whose principal office is not situated in their town.
    
      It seems, that the rule is otherwise as regards money received from lands assessed as the property of non-residents.
    The commissioners of highways of the town of Hyde Park assessed highway labor against “ H. R. R. Road,” it not otherwise appearing from the list whether the assessment was against the lands of a non-resident or against the H. R. R. Road Co., a stock corporation, whose principal office was not in Hyde Park. The H. R. R. Road Co. had been assessed on the previous year’s assessment-roll. Held, that the assessment was against the corporation, and not against its real estate as land of a non resident.
    Appeal from a judgment of the Dutchess County Court.
    
      This action was brought by Jonathan C. Fowler, John K. Hewlett, and Henry E. Jewell, commissioners of highways, of the town of Hyde Park, against Casper Westervelt. The action was first tried before a justice of the peace. The plaintiffs were commissioners of highways of the towy of Hyde Park; and the defendant was acting overseer of road-district Ho. 28, of Hyde Park, having been appointed as such by the commissioners, but never filed an acceptance of the office in the town clerk’s office. In making their assessments of highway labor for the year 1862, the commissioners assessed the “H. E. E. Eoad” for 273-days in district Ho. 28. This labor was commuted by the payment to defendant of $170.62, all of which, with the exception of $55, had been expended by him on his district before the commencement of this action, which was brought to recover the amount then remaining in his hands.
    The answer denied the allegations in the complaint, and also pleaded a set-off, but no evidence was given to sustain the set-off upon the trial. Upon the trial before the justice, the jury rendered a verdict of “no cause of action,” and judgment was entered in favor of the defendant for $4.18 costs, from which the plaintiffs appealed to the County Court, specifying as grounds of appeal:
    1st. That the justice erred in admitting evidence of defendant under objection of plaintiffs.
    2d. That the justice erred in refusing evidence offered by plaintiffs.
    3d. That the judgment is against law and evidence.
    On the trial before the County Court, the defendant moved to dismiss the appeal for want of jurisdiction-, and also moved for a nonsuit at the close of the testimony, which motion was renewed upon the whole case, both of which motions were denied by the court, and exceptions taken. The court also refused to charge the jury as requested by defendant, to which exceptions were also taken. The jury found a verdict in favor of the plaintiffs of $55, and judgment was entered in their favor of $106.74, from which'the defendant appealed to this court.
    
      Wilber & Van Cleef , for the appellant.
    I. The grounds of appeal from the judgment in the justice’s court, as set forth in the notice of appeal, were not sufficient to give the County Court jurisdiction, and the appeal should have been dismissed. 1. No evidence admitted by the justice in behalf of the defendant was objected to- by plaintiffs, and no evidence offered by plaintiffs was refused. 2. The grounds of appeal are too vague and general. (Derby a. Hannin, 5 Abbotts' Pr., 150; S. C., 15 How. Pr., 32; 2 Sandf., 632; 14 How. Pr., 307; 16 Ib., 471; 2 E. D. Smith, 123; Code, § 371.)
    II. The county judge should have granted a nonsuit. 1. This action is brought by the plaintiff in their own names. They have sued as individuals, not as commissioners of highways. The words commissioners of highways in the summons and complaint, are merely deseriptio personce, and this error can be taken advantage of at any stage of the cause. (19 Barb., 179.)
    2. The complaint does not show by proper averments that this action is brought by the plaintiffs as officers and not as individuals. (Gould a. Glass, 19 Barb., 179; Merritt a. Seaman, 6 N. Y., 168; 6 Hill, 240; 24 Wend., 345; 26 Ib., 605.) The complaint is not merely defective in form but in substance, as it fails to show any right of action in behalf of the plaintiffs, as commissioners of highways. A defective title is as fatal in a justice’s court as in a court of record. 3. The declaration should have stated specifically the cause of action arising under the statute. (Bartlett a. Crozier, 17 Johns., 439,456.) This appears to be a sound and well-settled rule of pleading in actions founded upon statute. (4 Johns., 193 ; 7 Ib., 402; 8 Ib., 218; Ib., 342.) 4. If defendant was guilty of any neglect or refusal, he is only responsible under the section which prescribes a penalty. (1 Rev. Stat., 504, § 16.) 5. The defendant was not bound to pay over any moneys collected by him as overseer until the rendering of his annual account. (1 Rev. Stat., 512, § 51.)
    III. The County Court erred in not. granting a nonsuit upon the whole case. 1. It appears by the highway list, that the labor was assessed against the “ H. R. R. Road,” and not against the Hudson River Railroad Company or corporation. This list is conclusive against the plaintiffs. (1 Rev. Stat., 507, § 24.) The right of action, if any exists, in favor of plaintiffs, arises under Laws of 1837, ch. 431, §§ 1-3, in which the assessment is, without exception, referred to as made against the corporation. 2. If the “ H. R. R. Road” is a corporation under the provisions of these sections, either a compliance with the law or an enforcement of its penalties is impossible. 3.-For a non-compliance with this law, such corporations are liable to the same penalties as in the case of individuals, which are to be collected in the same manner. (1 Rev. Stat., 510, §§ 41-43.) The territorial jurisdiction of a justice is confined to the county in which he resides, and the law thus becomes impossible of execution. If, however, the H. R. R. Road is to be regarded as non-resident land, the law has made ample provision for the enforcement of its penalties. (1 Rev. Stat., 511, §§ 47-50.) 4. The commissioners are to be guided in their .assess.ment by the manner in which the assessors had made their assessment, (People a. Pierce, 31 Barb., 138.) By reference to the law regulating the taxation of corporations, it will be seen that the assessors assessed the property belonging to the H. R. R. R. Company in the town of Hyde Park, as non-resident land.
    
      Joseph F. Barnard, for the respondents.
    I. The commissioners of highways are specially by statute entitled to demand and receive from any overseer, the whole or any part of the commutation-moneys received by such overseer of a corporation for highway labor, to be expended in other districts. (Laws of 1837, 488, ch. 431, § 3.)
    H. The commissioners are to assess as inhabitants of the town all stock corporations which shall appear on the last assessment-roll of the town. (Laws of 1837, 488, ch. 431, § 1; People a. Pierce, 31 Barb., 138.)
    HI. Lands of non-residents occupied and improved, are to be assessed as if owner was resident. (Laws of 1832, 170, ch. 107, § 1; Laws of 1835, 163, ch. 154, § 1.)
    LV". The tax being legally imposed and paid, the commissioners have the right to bring this action, and are not compelled to await the account of the overseer at the end of the year, which has reference generally to unexpended moneys in his hands, and not to such portion of corporation commutations as they may demand. (1 Rev. Stat., 512, § 51.)
    V. If issue be taken by answer instead of demurrer, objection cannot be taken on appeal to form of complaint. (10 Wend., 254; 15 Ib., 669; 3 Barb., 609; 4 Ib., 361; 1 Den., 504.)'
    
      
       Also in the Buffalo Superior Court, by the amendment of 1863. Laws of 1863, ch. 392.
    
    
      
       But in order to costs, particularity is necessary by section 354.
    
   By the Court.—Scrugham, J.

The amount of the claim of the plaintiffs, litigated in the justice’s court, exceeded fifty dollars, and on appeal to the County Court, the appellant was entitled to a new trial as a matter of right, not dependent upon error in the proceedings in the justice’s court. (Laws of 1862, 853, ch. 460, § 23.) He can only take his appeal hy the notice prescribed by section 353 of the Code of Procedure, and it is necessary that he state therein the grounds upon which the appeal is founded; but as the appellate court, in such cases, cannot pass upon any question suggested by the grounds of appeal, but must proceed to a new trial of the action whether they can be sustained or not, there can be no reason for requiring particularity in their statements, and an allegation that the judgment was against law and evidence, is therefore on an appeal in such cases, a sufficient compliance with the requirement that the grounds of appeal shall be stated in the notice.

The motion for nonsuit in the County Court on the grounds that the plaintiffs had sued as individuals and not as commissioners of highways; and that the complaint does not aver that the plaintiffs are commissioners, was properly denied. It was founded upon an alleged inaccuracy in the complaint, and the objection should have been made in the justice’s court, where, if necessary, the complaint might have been amended. Applying the rule that pleadings in justice’s courts are to be liberally construed, and are not required to be in any particular form, but are sufficiently definite, if they are such as to enable a person of common understanding to know what is intended; it will be found that the complaint is not open to this objection.

• The words, commissioners of highways,” are affixed to the names of the plaintiffs, in the title. It is true that this is merely “ descriptiopersonarum,” and following the authority of Gould a. Glass (19 Barb., 119), the complaint would be bad if it did not, in addition to this, contain an averment that the plaintiffs weré commissioners of highways. In this complaint, however, the title gives the names of the plaintiffs, with this description of them as commissioners of highways, and, in the body of the complaint, it is averred that “ the plaintiffs, commissioners of highways, complain.” This sufficiently indicates the character in which they complain, and shows that the claim is made by them as officers and not as individuals. This case is distinguished from that of Gould a. Glass, as there were no words in the body of the complaint, in that case, indicating that the plaintiffs sued in their official capacity.

The principal question presented on the appeal is, as to the right of commissioners of highways to claim from an overseer, before his accounting at the end of the year, commutation-money, received by him from a corporation whose principal office is not situated in their town.

An overseer of highways has a right to apply and expend all commutation-moneys received from individuals residing in his district, in the improvement of the roads and bridges in that district; for the statute directs that it be expended there; but he has no right, without authority from the commissioners, to expend any part of the commutation-money received from moneyed or stock corporations; for the commissioners are given control over such money, and may expend it in any district in the town—the law intends that they shall exercise their judgment and discretion as to its application, and this could not be done if the overseer who receives it should be allowed to expend it in his district without authority from them. It is to provide against this that the statute authorizes the commissioners to demand and receive it from any overseer-to whom it may have been paid. (Laws of 1837, 488, ch. 431, §3.)

The money may be paid in the first instance to one of the commissioners; if it is paid to an overseer, he receives it for them, and it is his duty to pay over to them. Failing to perform this duty, they are entitled to demand it, and the demand in this case, we think, was sufficiently proved.

It is said that the commissioners assessed the real estate belonging to the Hudson River Railroad Company lying in the district, as lands of non-residents, and therefore that section 3 of chapter 431 of Laws of 1837, does not apply to the commutation-moneys received from them, but that under 1 Rev. Stat., 509, § 35, it must be applied by the overseer to the improvement of the roads in his district. ‘ Some force is given to this suggestion by the fact that the entry in the list made by the commissioners, and by them delivered to the overseers, is as follows: “H. R. R. Road, 273.”

It is conceded that the initial letters and the word road” are to read as the “ Hudson River Railroad.” This is not the legal name of the corporation, but it is one often employed to designate it; and that it was used by the commissioners with that intention, rather than as a description of the land of the company, designing to assess it as the lands of non-residents, is apparent from the fact that it is not such a description of nonresident land as by law they are required to give. (1 Rev. Stat., 506, §§ 22-24.)

Moreover, it was the duty of the commissioners in making the estimate and assessment of the residue of the highway labor to be performed in their town, after assessing at least one day’s labor upon each male inhabitant above the age of twenty-one years, “ to include among the inhabitants of such town among whom such residue was to be apportioned all moneyed or stock corporations, which appeared on the last assessment-roll of their town, to have been assessed thereinand the Hudson River Railroad Company was one of the corporations which so appeared.

The case decided in this district (People on rel. Hudson River R. R. Co. a. Pierce, 31 Barb., 139), cited by the appellant as authority that the commissioners are to be guided in their assessment by the manner in which the assessors had made their assessment, is equally authoritative to the point that the commissioners must assess all moneyed and stock corporations which they find assessed on the last assessment-roll of the town, as inhabitants thereof, without regard to the place of their actual legal residence. It does not appear from the assessment-roll that the lands of the Hudson River Railroad Company were assessed as lands of non-residents. Such lands are to be assessed by description and not in the name of the owner; and the . quantity contained in each lot is to be stated; and although the assessment is not in all respects such as is required to be made of the land of residents, it more nearly resembles that than an assessment of non-resident lands.

'Nothing can be presumed from the position of the assessment on the roll, for it is neither among the assessments of residents . nor among those of non-residents, but.follows both.

We find no error in the proceedings in the County Court which will authorize a reversal of the judgment.

The judgment of the County Court should be affirmed with costs. 
      
       Present, Brown, Scrugham, and Lott, JJ.
     