In re Fenn

128 A.D. 10, 112 N.Y.S. 431, 1908 N.Y. App. Div. LEXIS 367

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1908
• Status: Published

Opinion

Per Curiam :

The proceeding for laying out the highway seems to have been conducted in substantial compliance with the provisions of the Highway Law (Laws of 1890, chap. 568),

* as amended, except that the undertaking which accompanied the application for the appointment of commissioners was defective, in that it provided that the liability of the sureties should not exceed the sum of fifty dollars, instead of one hundred dollars, as required by chapter 67 of the Laws of 1906. Notwithstanding an undertaking in conformity with the requirements of this statute was necessary to entitle the respondent to take the proceeding, we think the County Court had power to allow an undertaking to be substituted for the defective one under section 730 of the Code of Civil Procedure, and that the defect was cured by the filing of an undertaking which met all of the requirements of this amendment of the Highway Law. The section is very broad and comprehensive, and applies to special proceedings as well as to actions.

As to the necessity of the proposed highway and the compensation of the landowners, it is only necessary to say that section 89 of the Highway Law has made the decision of the County Court _ upon an application to confirm the decision of the commissioners final and conclusive upon those questions. (Matter of Mitchell, 85 App. Div. 277; Matter of De Camp, 151 N. Y. 557.)

We think that the order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with costs.

See § 82 at seq., as amd.— [Rep.