People ex rel. Waterman v. Schellenger

10 N.Y.S. 947, 32 N.Y. St. Rep. 353, 56 Hun 647, 1890 N.Y. Misc. LEXIS 1088

• Court: New York Supreme Court
• Decided: May 12, 1890
• Status: Published

Opinion

Barnard, P. J.

It is not the object of a writ of certiorari, to reverse proceedings to open highways, that the return should state facts outside of those which show jurisdiction. The return must give the record only. In this case the record “properly included the application, the certificate of the freeholders, and the order of the commissioners, or, at most, a history and recital of all the official acts of the commissioners in the course of the proceedings. ” People v. Wheeler, 21 N. Y. 82. The return shows no error in the proceedings. The jury was drawn in the manner required by law. The names of all persons on the jury-lists of the town were put in a box, and a jury of twelve drawn therefrom. One person declined to serve and was not sworn, and no objection was made to any other person. Ten of the jurors signed the certificate. The commissioners therefore made the order laying out the road. The return does not show an orchard, if it is proper that the commissioners should determine that question. There are a few wild apple and cherry trees along the fence, and 10 prickly pear trees. The apples are wild natural growth trees, and the return states that the trees do not constitute, in whole or in. part, an orchard. The finding of the jury, and the decision of the commissioners upon the question, should be upheld. People v. Commissioners, 57 N. Y. 549. The judgment should therefore be affirmed, with costs. All concur.