In re City of Middletown.

county appointed three commissioners, one of whom was Henry Wiggins, the commissioner removed by the order appealed from. The commissioners duly qualified and entered upon the performance of their duties, and while the proceedings before them were pending Thomas Neville, an owner of land likely to be affected by the proceedings, made the motion which resulted in the order appealed from.

Other facts appear in the opinion.

William F. O'Neill, for appellant.

S. S. Gowdey, for Thomas Neville, respondent.

BARNARD, P.J.-This is an appeal from an order of the county judge of Orange county removing one Henry W. Wiggins from his office as commissioner in the above-entitled proceeding, to which said office he had previously been appointed by the said county court, for the reason that Wiggins was a brother-in-law of one A. V. Boak, who was a silent partner with the firm of Bull & Youngblood in the ownership of certain lands affected, or likely to be affected, by the said condemnation proceedings.

The appointment of Mr. Wiggins as one of the three commissioners was made under chapter 535 of the Laws

of 1888 (and the subsequent amendments there[to), entitled "An act to incorporate the city of

Middletown," and in section 7 of title 6 of this act the appointment of three disinterested freeholders is required. No further qualification is demanded of the commissioners except that they shall be disinterested; and we are of the opinion that the county judge of Orange county erred in holding that section 46 of the Code of Civil Procedure applies to commissioners of this nature, or that by reason of standing in the relation of brotherin-law to a party whose interest is likely to be affected

In re City of Middletown.

a commissioner thereby ceases to be disinterested, without proof of some direct interest of his own in the affair.

In re Dodge & Stephenson Manuf'g Co. (77 N. Y. 101) the learned court, in its opinion, says: "This lan

guage does not seem appropriate to such a case [2] as the present, but rather to a case where there

are parties adverse to each other, or at least where some question is to be determined between two or more parties; but, passing this question, it is very certain that to exclude a judge from sitting in any cause by reason of kinship, such kinship must exist between him and some person who is actually a party to the cause. It is not enough that he is related to some person not a party who is or may be interested in it or affected by his order. Interest on the part of a judge disqualifies him from sitting, but interest on the part of a relative of the judge does not."

We are furthermore of the opinion that the section. of the Code referred to does not include commissioners

among and along with judges and officers exercis[8] ing judicial or quasi-judicial functions. This

commission was solely for the purpose of looking into the general necessity and bearing of the proposed street extension, and their decision was subject to the subsequent scrutiny and oversight of the court, both as to the amount of damages and in every other respect. This provision of the Code needs to be strictly construed, as under a liberal construction it could be made to apply to almost every class of court appointees or elective officers of towns or municipalities exercising a power in any respect resembling the judicial. People v. Wheeler, 21 N. Y. 82; Foot v. Stiles, 57 Id. 399; In re Southern Boulevard, 3 Abb. Pr. N. S. 477; People v. Mayor, 63 N. Y. 291.

[4]

The order appealed from should therefore be reversed, with costs and disbursements of the appeal.

DYKMAN and PRATT, JJ., concurred.

Lamming v. Galusha.

LAMMING, RESPONDENT, v. GALUSHA et al., APPEL

LANT.

SUPREME COURT, FIFTH DEPARTMENT, GENERAL TERM; JANUARY, 1892.

§§ 483, 484.

Pleading cause of action for nuisance cannot be united with cause of action for damages for personal injuries-Separately stating

and numbering causes of action.

A cause of action to restrain and recover damages for a nuisance consisting of the unlawful maintenance and operation of the defendant's steam railway in a public street from which the plaintiff has suffered special and peculiar injuries other than the public at large, is improperly united in the same complaint with a cause of action to recover damages for personal injuries received by the plaintiff by the negligent operation of said road on a particular day. The negligent act of running a train on a particular trip cannot be said to arise out of the same transaction as the maintenance of the nuisance which constitutes the general burden of the complaint, nor is it connected with the same subject of action.

A defendant is not precluded from demurring to a complaint on the

ground that two causes of action are improperly united therein because said causes of action are not separated or stated to be independent of each other and are not separately numbered. Wiles. Suydam (64 N. Y. 173); Goldberg v. Utley (60 Id. 427)

followed.

(Decided January, 1892.)

Appeal by defendants from an interlocutory judgment of the Monroe county special term overruling a demurrer to the plaintiff's complaint.

The facts are stated in the opinion.

Lamming v. Galusha.

Cassius C. Davy, for defendant, appellant.

Henry W. Conklin, for plaintiff, respondent.

MACOMBER, J.-The demurrer is placed upon the ground that it appears upon the face of the complaint that causes of action have been improperly united, naming four particulars.

The plaintiff is the owner of certain lands in Irondequoit lying along North avenue, which extends from the city of Rochester to the Ridge road, and also of lands on the Ridge road, near the intersection of that highway with North avenue, particularly described in the complaint. These premises are used for farming purposes, raising vegetables and fruits for market in the city of Rochester, where they are carried by wagon, which makes nearly daily trips during several months, and goes two or three times a week during the remainder of the year. The plaintiff, with his family, also goes to the city of Rochester for worship, being attendants upon a church there. The usual and most convenient and natural route from the plaintiff's dwelling, which is near the Ridge road, on a street known as Garden street, as well as from other parts of the plaintiffs land, to and from the city of Rochester, is along the Ridge road and North avenue to Bay street, which is within the city limits, a distance of about two miles. Any other route is circuitous, and, it is alleged, is inconvenient, and involves travelling half a mile further, at additional delay, labor and expense.

Thence follow allegations showing with much circumstantiality that the defendants, before and since the first day of July, 1887, to the present time, have habitually interrupted access to his houses, and interfered with the use of a sand and gravel bed on his premises, and the easy marketing of his crops, by the unlawful construction and operation in these public highways of a rail

VOL. XXII.-2.

Lamming v. Galusha.

road operated by steam; that plaintiff's lands extend to the centre of both North avenue and Ridge road, and that the defendants have wrongfully and unlawfully built and maintained high embankments in North avenue, obstructing the natural drainage of the road and otherwise obstructed travel thereon and on the Ridge road, rendering them during certain seasons of the year impassable to vehicles; that said embankments cause the drifting and accumulation of snow so that the highway cannot be travelled. Suffice it to say, in short, that the grievances of the public, as well as the plaintiff's personal grievances, are set forth in much detail. The complaint also contains suitable allegations of special injuries peculiar to the plaintiff alone, other than those suffered by the public at large.

The facts of this case are summed up by another clause in the complaint, but to the same legal effect. It is there alleged that these acts of the defendants constitute a public nuisance and are a special injury to the plaintiff, and that, inasmuch as he has no adequate remedy at law, he comes into a court of equity and asks for damages and an injunction to restrain further wrongful operations of the railroad, under suitable allegations averring threats and intention on the part of the defendants to continue to maintain such nuisance.

Here is, clearly, a cause of action set forth alleging the existence of a public nuisance, and showing that the plaintiff has suffered special and peculiar damages, other than the public at large. If these allegations are estab lished by evidence and not overcome by affirmative de fences, the plaintiff would be entitled to some relief (Adams v. Popham, 76 N. Y. 410).

The complaint, as above epitomized, is a unit and contains only one cause of action. But in the body thereof there are other allegations which certainly, for the purposes above mentioned, have no place there without any connection with the statement of the facts above