By the Court,
Hoseboom, J.The plaintiff makes three objections to the decisions of the judge in the court below; none of which appear to me to be well taken.
It is said that the judge erred in excluding the record of partition upon the ground that only two of the three commissioners attended upon and superintended the balloting for the lots. It appears to me that his decision was correct, for the following, among other reasons: (1.) The statute is express that the duty shall be performed by the commissioners, that is, by all of them. (2.) The duty to be performed is delicate and responsible—one calling for the exercise of uncommon care and discretion, and high integrity; in which several persons were interested, and several thousand acres of land were to be allotted and distributed. (3.) The legislature had signified their sense of the importance of the proceeding, by requiring the presence and superintendence of a judge of the supreme court, in order “ that the same might be conducted in a just and impartial manner.” (4.) The partition thus made was to be conclusive upon the parties, and “valid and effectual in the law to divide and separate the said lands;” and the proceedings were to be entered in *355books which, or an exemplification thereof, were to be “ good evidence of such partition.” (5.) In such cases it has been well held that “ when lands are to be taken under a statute authority, in derogation of the common law, every requisite of the statute having the semblance of benefit to the owner must be strictly complied with.” (Sharp v. Johnson, 4 Hill, 99.) And also ££ sales (and it might have been added other dispositions) of real property by public officers, of one description or another, had become so frequent and had excited such active cupidity, and such a spirit of speculation, that there was very great danger of injustice, unless the checks and guards provided by law were strictly supported.” (Denning v. Smith, 3 John. Ch. R. 344.) And also, ££ The rule seems to be well established that in the exercise of a public as well as private authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless there be a provision that a less number may proceed.” (Downing v. Rugar, 21 Wend. 178.)
I cannot regard the duties to be performed under this act as unimportant, merely ministerial or mechanical; nor of such a nature that the attesting judge may adjudicate upon the same, and in his discretion dispense with the observance of any of the prescribed formalities. He is not placed there for that purpose, but rather as furnishing a guaranty that a strict observance of them will be enforced, and that without it his approbation and certificate cannot be obtained. The responsibility of the act and the conduct of the proceedings, after all, devolved principally upon the commissioners themselves, and the judge was present rather as an impartial witness giving dignity and solemnity, and insuring accuracy in the proceedings, than a magistrate whose decisions were to be conclusive as to the mode of proceeding. Moreover, he made no decision purporting to give validity to the proceedings, or overruling as unnecessary the presence of the third commissioner. The case of Cole v. Hall (2 Hill, 625, 627) is not parallel. There it was said that although only two commis*356sioners signed the report, it must be presumed that all met and deliberated, and hence the act was the act of all. Here it expressly appears that only two met and acted, accompanied by the judge. There the defects were not even suggested at the trial; and other facts or papers might possibly have explained or obviated the apparent defect. Sere the objection was distinctly made, passed upon and supported. I think the position here assumed is substantially supported by the following authorities, and is almost directly adjudicated in the modern case of Powell v. Tuttle. (Denning v. Corwin, 11 Wend. 647. Bloom v. Burdick, 1 Hill, 141. Sharp v. Speir, 4 id. 76. Sharp v. Johnson, Id. 99. Sherwood v. Reade, 7 id. 434. Powell v. Tuttle, 3 Comst. 396. Pell v. Ulmar, 18 N. Y. Rep. 139.)
The deed from the Hew York and Erie Bail Boad Company was properly introduced, and the objections thereto properly overruled. It served, at all events, to show that the defendant Marsh was in the possession of the premises, and claiming title thereto under the Hew York and Erie Bail Boad Company. For that purpose the previous proceedings, demanded by the plaintiff, were unimportant and not necessary to be produced.
The judge also properly nonsuited the plaintiff as to the Hew York and Erie Bail Boad Company. They were unnecessary and improper parties to the suit. The point was for a time in doubt; but it is now held that no other person should be made a defendant in an action of ejectment except the party in actual and exclusive possession. (Taylor v. Crane, 15 How. 358. Fosgate v. Herkimer Manuf. and Hydr. Company, 2 Kern. 580; S. C., 12 Barb. 352. Ensign v. Sherman, 14 How. 439. Walter v. Lockwood, 23 Barb. 228. Sanders v. Leavy, 16 How. 308.)
I perceive no error in the judge submitting to the jury to find as a question of fact the location of the monument marking the southwesterly corner of lot Ho. 2. Although the defendants admitted possession of the premises described in *357the complaint, their true location was a matter of importance on the trial, and may have been very material to the defense which the defendants sought to establish, to wit, the title to the property, as well as to the proper rendering of the verdict and the subsequent delivery of possession by the sheriff. Parol proof appears to have been introduced in regard to it, without objection at the trial, and I see no impropriety in its entering into the verdict of the jury.
[Albany General Term, May 5, 1862.I think the motion for a new trial on the exceptions should be denied.
Eogeboom, PecKham and Miller, Justices.]