People ex rel. Banner v. Temple

34 N.Y. Sup. Ct. 128

• Court: New York Supreme Court
• Decided: May 15, 1882
• Status: Published

Opinion

Landon, J.:

The Revised Statutes (1 R. S., 511, § 57), before the amendment of 1873, absolutely prohibited the laying out of a public or private road through any orchard, or garden, or building, or erections for trade or manufactures, or yards, or enclosures necessary to the use and enjoyment thereof, without the consent of the owner.

It is not disputed that the garden and bee yard of Mr. Swackhammer fall within the terms of the section. By chapter 773, Laws of- 1873, section 57 was amended by adding a proviso at the end of it. As amended, the absolute prohibition against laying out the road without the owner’s consent still continues, unless the substitute for that consent, as provided in the amendment, shall be obtained. That substitute is, that upon notice to the owner the commissioner shall certify to the Gounty judge that the public interest will be greatly promoted by the laying out and opening the road, and if, upon hearing both sides, the county judge shall affirm the decision of the commissidner, and then, upon further hearing, the General Term shall “ confirm ” the order of the county judge, then the non-consent of ‘the owner is no longer an obstacle, and it becomes “ the duty of the commissioner to proceed and lay out and open said road as in other cases.”

It will be seen that this proceeding before the county judge and the General Term is between the commissioner and the ownei of the land; the public have no notice of it and take no part in it. Its purpose is to remove, if it shall be right to do so, the obstacle of the owner’s non-consent. This removed, the commissioner proceeds as if he had that consent.

But the public niay be greatly aggrieved by his subsequent action in laying out the road, and the eighty-fourth section, giving an appeal to the county judge to “ every person who shall conceive himself aggrieved by any determination of the commissioner in laying out,” etc., is as necessary as if the owner had given his consent, and is in no wise repealed. If these views are correct, the appeal from the order of the commissioner laying out the road was properly taken, and the order of the referee thereupon should be affirmed, with fifty dollars costs, as provided in section 2143, Code of Civil Procedure.

It may not be improper to add that, in our opinion, the commissioner could regularly have made no order laying out the road until after the decision of the General Term upon the county judge’s order affirming the commissioner’s certificate. Until then he had no jurisdiction to lay out the road; that is, to make the order laying it ojfi ; but we have chosen to review the question presented as if his order were regularly made.

Learned, P. J., and Bqardman, J., concurred.

Order of referees affirmed, with fifty dollars costs and disbursements.