Cristman agt. Paul and others.

ness, not being found in the notice of appeal, is not available to the defendants here.

III. It is also claimed by the appellants that on the facts alleged in the complaint and proved on the trial, the plaintiff was not entitled to the judgment against them.

It is alleged in the complaint, that the defendants are commissioners of highways of the town of Wilmurt, and as such, are obligated to keep the highways and bridges in said town, in repair; that a certain highway, in said town, had been out of repair and wholly impassable, for three years; and that the defendants, although they had the means and power to repair the same, and although they had been notified and requested so to do, had wilfully, carelessly, negligently, and intentionally, neglected and refused to work and repair the same; that the said highway was the only highway leading to and from the plaintiff's farm in said town, and that by reason of the said neglect and refusal, the plaintiff had sustained great damage in his business of farming and teaming, by breaking and destroying wagons and other vehicles, injuring teams, inability to get off shingles and lumber, time and labor expended in passing to and from said farm by reason of insufficient roads, depreciation in the value of farm by reason of no road that was passable, and other injuries and damages, in all, to the amount of one hundred dollars.

All these allegations, except the existence of the highway, are not denied, and therefore admitted. On the trial, the plaintiff gave proof of the existence of the highway, and that the defendants had in their hands $600 applicable to highway purposes; and on the subject of damages, there was no proof except the evidence of the plaintiff, which is as follows: "Said road is impassable with teams; has been so for a year and a half; the commissioners had notice of its being impassable at different times; commissioners agreed to fix said road; the last time I talked with Alvin Paul, he said he would not do any thing about it; said commissioners employed me for two years to find my own way out; that time expired one year and a half last June; they paid me fifty dollars per year; it had a good

Cristman agt. Paul and others.

deal of effect on me, for the reason that I could not get anything in or out, such as lumber or shingles; I broke my wagon and sleigh by reason of bad roads; had to expend a good deal of time and labor in working my way out, in consequence of the road being bad.”

I have been able

I am of the opinion that on the facts as alleged and proved, the plaintiff was not entitled to recover. There is no precedent to which I have been cited, or which to find, for the maintenance of such an action. If such actions are maintainable, they would have been of frequent occurrence, and many of them would have found their way into the reports; and the fact that the reports furnish no case of the kind, is all but conclusive authority, under the circumstances, that the action is not maintainable. (See Bartlett

agt. Crosier, 17 John. 437; Morey agt. The Town of Newfane, 8 Barb. 645; Hutson agt. The City of New-York, 5 Sandf. 289, 319.) I think, too, from these cases, it is quite clear that the only remedy against commissioners of highways for not repairing highways, is by indictment, except that in a proper case, they might also be proceeded against by mandamus.

But if I am wrong in this view, and an individual can, in any case, sustain an action against commissioners for damages sustained by a road negligently and wrongfully left out of repair by them, it could only be when the damage sustained was special, and peculiar to the plaintiff; but it could not be for such damages as were incident and common to all persons who might have occasion to travel on the road. (See Lansing agt. Smith, 8 Cow. 146; Butler agt. Kent, 19 John. 223, 227; The People agt. The Corporation of Albany, 11 Wend. 540, 544.)

In this case, the only damage which the plaintiff can claim to be special and peculiar to himself, within the rule, is the breaking of his wagon and sleigh; and as to this, it is not alleged or proved what the amount of the damage was, and hence the recovery for it should have been merely nominal, and the judgment for $75, cannot be sustained.

It cannot be said that the defendants, by not denying, have

Evertson and others agt. Givan and others.

admitted the $100 damages alleged in the complaint. I am inclined to think that in a justice's court, as well as in the supreme court, in a case of this kind, the plaintiff, although the amount of damages claimed was not put in issue, would have to prove the amount of his damages. But whether this be so or not, the defendants, by not denying, have, in any view of the case, admitted only such damages, as on the face of the complaint, they were legally liable to pay, to wit: nominal damages. The $100 damages claimed in the complaint, was made up of items for the most of which the defendants were not, within the rule as above stated, liable. The judgment of the justice must therefore be reversed

SUPREME COURT.

EVERTSON and others agt. GIVAN and others.

A formal exception to a referee's report under an interlocutory decree, is not necessary. Where the exceptions to the evidence before the referee at the hearing are specific enough, it is not necessary to repeat them on the summing up before the referee, or at any other time.

Where the decree of the court, without expressly deciding Mrs. Evertson's estate was liable for the want of reasonable care and diligence in collecting the money due upon the bond and mortgage, directed the referee to ascertain whether she failed as to her duty in that respect, and the referee having reported fully upon the point, this court confirmed the report-the referee having had full opportunity to canvass and weigh the whole evidence thereon.

New-York Special Term, April, 1858.

CLERKE, Justice. The exceptions taken to some portion of the evidence before the referee, are perhaps specific enough, as exceptions taken to evidence at the trial; it would be otherwise if they were regarded as exceptions taken to the report itself, which the old practice in references of this nature always required. But under the present system, formal exceptions to reports under interlocutory decrees are not necessary; and al

Evertson and others agt. Givan and others.

though the counsel has deemed it prudent to file such exceptions in this case, I regard them merely as points upon which his argument in opposition to this report is founded.

The objection therefore, that the exceptions are not suffi ciently specific, does not apply in this case; the exceptions to the evidence before the referee at the hearing, were specific enough; and I do not think it was necessary to repeat the exceptions on the summing up before the referee, or at any other time.

But I do not deem the exceptions in substance, tenable. This is in effect, whatever it may be technically denominated, an action to give efficacy to a decree, in a former action between the same parties or their privies; and all proceedings, evidence, proofs and pleadings of record, and which were taken and exhibited in the one, may properly be read in the other.

With regard to the substantial merits of this very long and very complicated controversy, they have been fully passed upon by the decree of the chancellor in the former suit, and by that of Judge MITCHELL, in this, bearing date 22d March, 1854. In these decrees, it is decided that the plaintiffs were entitled to the moneys secured in the name of George B. Evertson, on the mortgage referred to, and that those who claim under Nicholas Evertson, as his legatees or next of kin, or under them, and those who claim under Mrs. Evertson or her legatees, or next of kin, or under them, are liable to refund whatever amount she received on this mortgage with interest, to the extent of what they have actually received out of the estates of Nicholas Evertson and Mrs. Evertson; and by Judge MITCHELL'S decree, the referee was directed to ascertain the amount received by Mrs. Evertson on account of the said bond and mortgage, and to take an account of the principal and interest due thereon, from their date to the date of the report. The referee was also directed to inquire and report which of the defendants, if any, &c., received any portion of this amount collected by Mrs. Evertson, and how much, and whether the same was received directly as part of the money derived from the proceeds of this mortgage, or merely as part of the general

The People ex rel. Woodworth agt. Burrows, Comptroller.

accounts of Nicholas Evertson's estate, or of Mrs. Evertson's estate, with some specific directions as to the extent and manner of the inquiry. The decree, without expressly deciding Mrs. Evertson's estate was liable for the want of reasonable care and diligence in collecting the money due upon the bond and mortgage, directs the referee to ascertain, whether she failed as to her duty in that respect; virtually deciding or presuming that her estate, or her husband's, was liable for her neglect of due diligence. This is the only original question in the cause, which it can be supposed is left for me to decide; and on this point, I will confirm the referee's report, as well as upon all the other subjects in relation to which he was instructed to inquire. I have no reason to doubt the correctness of his conclusions. Report confirmed with costs. Before the settlement of the judgment, let some person be substituted in the place of Mr. Palmer, deceased.

SUPREME COURT.

The People ex rel. JOHN WOODWORTH agt. LORENZO BURROWS, Comptroller, &c.

There is no question but what the transaction by which a judge accepts the office conferred upon him by an act of the legislature, with a salary attached to the same, and impliedly undertakes the faithful performance of its duties, is a contract within the meaning of the constitution.

But it seems that the nature of this contract is such, that the legislature may, during the term of office, alter the amount of the salary from time to time, (where no prohibition is contained in the constitution,) without impairing the obligation of contract, within the meaning of the constitution of the United States.

It seems, there is no stipulation on the part of the legislature, either express or implied that they shall not alter the salary. And the appointee accepts the office with a knowledge of this power, and under an implied consent that its exercise shall be left to the decision of the legislature.

On a proceeding by mandamus, to compel the comptroller of the state to pay the alleged salary of a judicial officer, a defence by the comptroller that no appropriation has ever been made by law for the payment of such claim, as required