People ex rel. Taylor v. Turner

40 N.Y.S. 839, 8 A.D. 395, 75 N.Y. St. Rep. 228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 30, 1896
• Status: Published

Opinion

ADAMS, J.

This court has very recently had occasion to hold that the decision of a county court confirming the report of commissioners appointed to lay out a highway, under the provisions of chapter 568 of the Laws of 1890, and the amendments thereto, is final, and cannot be reviewed by a writ of certiorari. People v. Onondaga County Court, 4 App. Div. 542, 38 N. Y. Supp. 920., The relators in this action endeavor to evade this decision by claiming that the proceeding is one which was instituted under section 96, instead of section 83, of the highway law. But we are unable to perceive the force of this contention. Section 83 and the immediately following sections are designed to point out the initiatory steps in all proceedings to lay out a new highway. Section 89 provides for a review of such proceedings in the county court, and that the determination of that court, upon such review, shall be final. Section 96 simply directs that, where a proposed highway shall run through two or more towns, the commissioners of highways of each town shall have notice of all proceedings taken to lay out the same; and, further, that, where such towns are in different counties, the application for the appointment of commissioners shall be made to a special term of the supreme court, instead of to the county court. But the last clause of this section explicitly declares that in the latter case the same proceedings shall thereafter be had in the supreme court as are authorized in this chapter to be had in the county court. So that, as we view the statute, it was clearly the intention of the legislature to make the review of proceedings for the laying out of a highway by the county court final, without respect to the question of whether such highway was located in one or more towns, provided it did not extend into an adjoining county. But, however this may be, we think that the writ of certiorari was unauthorized in any event; for if, as we have shown, the statute of 1890 is applicable to. this case, then the decision of the county court of Lewis county was final, and not subject to review in this court. But, on the other hand, if, as contended by the relators, such decision was not final, then the writ was not available, for they had their remedy by appeal. Code Civ. Proc. § 2122; People v. Thayer, 88 Hun, 136, 34 N. Y. Supp. 592; People v. Onondaga County Court, supra. We think the order appealed from should therefore be reversed, and the writ dismissed, with costs.

Order reversed, with $10 costs and disbursements, and the writ of certiorari dismissed, with $50 costs and disbursements against the relators. All concur.