State v. Larrabee

33 A. 216, 58 N.J.L. 314, 29 Vroom 314, 1895 N.J. Sup. Ct. LEXIS 9

• Court: Supreme Court of New Jersey
• Decided: November 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Garrison, J.

This certiorari brings up the appointment of surveyors of the highways for the alteration of a public road. The writ is addressed to the judges of the Pleas of Ocean county, who have, in response thereto, duly certified their proceedings to this court. This official return is laid before us accompanied by voluminous depositions taken upon notice, but without the special authority necessary to validate testimony by which it is sought to explain, modify or contradict the judicial certificate. Such affidavits are without probative force, and will not be considered in disposing of the reasons by which the proceedings of record in the court below are here challenged. Conover v. Bird, 27 Vroom 228, and cases there cited.

The remaining reasons divide themselves into two classes, viz., those that question the merits of the controversy submitted to the surveyors, and those that are based upon the alleged existence of certain facts dehors the record.

The questions raised by the first class of reasons are reviewable only by the statutory appeal by caveat and application for the appointment of freeholders.

The reasons based on allegations of fact are that the road altered by the surveyors was a public street of a village, and that it crossed the tracks of a railroad Company within five hundred feet of another public road that crossed said tracks.

Neither of these allegations is sustained by the proofs.

The proceedings under review are affirmed, with costs.