Olendorf v. Sullivan

13 N.Y.S. 6, 36 N.Y. St. Rep. 74

• Court: New York Supreme Court
• Decided: February 15, 1891
• Status: Published

Opinion

Merwin, J.

Whether there was, by dedication or user, a highway, as claimed by the plaintiff, was a question of fact, and the.evidence is sufficient to sustain the finding of the jury on that subject, within the principles laid down in Speir v. Town of New Utrecht, 121 N. Y. 420, 24 N. E. Rep. 692. By section 103, tit. 1, pt. 1, p. 1388, 2 Rev. tit., (8th Ed.) as amended by Chapter 245 of 1878, it is provided that the commissioner of highways, if in his opinion it be deemed necessary, shall order obstructions or encroachments to be removed, so that the highway maybe of the breadth originally intended. The order made by the commissioner must be in writing, and signed, and he must give notice in writing to the occupant or owner to remove such obstructions or encroachments within 60 days. “Every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment, and the place or places where the same shall be.” No fault is found with the order in this case, but it is claimed that the notice was not sufficient. A copy of the order was annexed to the notice, and it was referred to in the notice as being annexed. It should therefore be deemed a part of the notice so far as its specifications are concerned; so that then the occupant, by the notice in fact served, had all the information the law required to be given. In Cook v. Covil, 18 Hun, 288, it does not appear that a copy of the order was annexed, arid, besides, the order itself was defective. The statute does not require the order to be separately served. The ruling upon the question put to the witness Briggs was perhaps not strictly correct, but at that stage of the case, and in view of the prior evidence, it cannot be said to have affected the merits. Code, § 3063. The judgment should be affirmed, with costs. All concur.