People ex rel. Smith v. Hasbrouck , 54 How. Pr. 418 ( 1878 )

Brady, J. —

The appellant thought the relator remiss in allowing a person who was brought to the poll by a public officer as a substitute inspector, or one named to fill a vacancy, to act as such without protest, when he did not exhibit the necessary appointment in writing from the commissioners of police. It is assumed that such was the reason of the refusal, none being assigned or shown. The appellant undertook the duty of determining for himself and the people, certainly for the latter, the right of the relator to his certificate, and his judgment was erroneous. There is no doubt that the appellant acted from good motives and under convictions of duty, but the law has not intrusted him with the decision of such matters absolutely, and he should have taken advice or placed the proper persons in possession of the facts which he thought prevented the relator from making a just claim. The result was -that the relator was obliged to commence proceedings to get his certificate and to employ counsel for that purpose, and to the extent of the costs on the proceeding in the court below, he might, we think, have been indemnified, but the court, at special term, thought otherwise.

The relator, it must be said, cannot entirely be relieved from the charge of remissness of duty; the examination of the election laws would have revealed the preliminaries which must be observed for the appointment of an inspector of elections, and an inspector must be supposed to have some knowledge on the subject. If the relator had been the chairman of the board and had sworn in the new inspector the case would present a different aspect and a different result might have ensued.

It is for this reason, doubtless, that the costs of this proceeding were not imposed on the appellant in the court below, but we do not think that under the circumstances we can absolve the appellant from the payment of any costs on this appeal. The relator, however, having been heard on written points, we affirm the order, with ten dollars costs.

Order affirmed.

Davis, P. J., and Daniels, J., concur.