Smyth v. Bradstreet ( 1825 )

Curia, per Woodworth, J.

The plaintiff declared in ' assumpsit, for work, labor, and services, as a commissioner in the partition of lands ; and for money and materials provided. At the trial, an account was exhibited, containing a charge for services, at three dollars per day; and one dollar per day, for expenses; and such other advances as had been made for the hire of flagmen, &c. The plaintiff proved by one of the commissioners, the services performed, and moneys paid, and that three dollars per day was reasonable. The defendant objected to the evidence; but the objection was overruled, as was also a motion for a nonsuit • and there was a verdict found for the plaintiff.

The services had been so far performed as to entitle the plaintiff to payment; but the question is, whether he has not prematurely resorted to this action.

The 9th section of the act, (1 S..L. 512, s. 9,) declares that the commissioners shall be allowed such sum for their services as the Court shall direct, which shall be paid by the petitioners ; and shall be allowed as part of the costs, to be taxed. The manner of obtaining payment, then, is prescribed by the statute. That refers the quantum of compensation to the Court in which the proceedings are had. If so, the amount is not a proper subject of liquidation by a jury. If the plaintiff in the partition should tax her costs, to enable her to obtain contribution from the several owners, for the expenses incurred, she would not be authorized by the act to insert in the bill the damages found by the verdict; but would be confined to the allowance made by the Court. The proper course is, for the commissioners to apply to the Court, who, under the act, would certify the sum to be allowed. After this, the defendant would be liable to an action; and the amount allowed by the Court would be the measure of damages. Whether, m that case, the commissioners must join, or might sever in their actions, is not a point now necessary to be decided.

There is also an objection to the competency of the witnesses produced. One commissioner was called to prove not only the services of his fellow commissioner, but tile money paid for flagmen, &c. The money thus paid by the plaintiff, in this cause, was a charge, for which the other commissioners were holden to contribute a proportion; for the money paid to the men employed, must be considered as paid for the benefit and assistance of all the commissioners ; and, from the nature of the trust, the employment must be presumed to have been by the assent of all. It follows that Bartlet and Bostwick were interested in this part of the demand ; for if the plaintiff succeeded, by their testimony, in recovering the disbursements, they thereby became exonerated. The commissioners proved a fact which they had a direct interest to establish. The law on this point is well settled. (Marquand v. Webb, 16 John. Rep. 92. Gage v. Stewart, 4 id. 293. Butler v. Warren, 11 id. 57. Emerton v. Andrews, 4 Mass. Rep. 653.

I am of opinion, that the verdict should be set aside, and a new trial granted, with costs to abide the 'event.

New trial granted.