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In re Laidlaw

153 A.D. 343 Court Second Department, Decision date 1912-11-15 English

Delivered by *344 Carr, J.:

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p. 343
In the Matter of the Application of George Q. Laidlaw and Frank Rogers, Respondents, to Lay Out, Alter and Extend Newport Avenue, a Highway in the Town of Islip, and the Assessment of Damages Therefor. Edward S. Gillette and Others, Appellants.
Second Department,
November 15, 1912.

Headnote

Highways — proceeding for improvement of highway — time of service of application — Highway Law, section 193, construed — appointment of commissioners — jurisdiction of County Court.
The provision of section 193 of the Highway Law that an application to the County Court for an order appointing commissioners to determine the necessity for proposed highways and to assess the damages for the improvement shall be made within thirty days after presenting the application to the town superintendent, cannot be waived by the superintendent.
Where no step has been taken in the County Court within thirty days after the presentation of the application to the town superintendent, an order appointing commissioners, granted upon the town superintendent’s admission of service of the application as of a later date, should be vacated.
Compliance with sections 192 and 193 of the Highway Law are initial steps in the jurisdiction of the County Court to maintain a proceeding for the improvement of a highway.
Appeal by Edward S. Gillette and others, opposing property owners, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 1st day of May, 1912, denying their motion to vacate and set aside certain orders purporting to appoint commissioners, etc., with notice of an intention to bring up for review an order entered in said clerk’s office on the 19th day of November, 1910, denying the motion of said property owners to set aside the appointment of one of the commissioners.
W. K. Post [Joseph Wood with him on the brief], for the appellants.
George H. Furman [Alfred H. Dupree with him on the brief], for the respondents.

On September 7,1910, George Q. Laidlaw and Frank Rogers served upon Frank H. Call,' town superintendent of highways, a written application as provided by section 192 of the Highway • Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30) for the extension of a highway in the town of Islip, in Suffolk county. By section 193 of said statute (as amd. by Laws of 1910, chap. 344) it was provided that an application to the County Court for an order appointing commissioners to determine the necessity of the proposed highway and to assess damages for the improvement shall be made within thirty days “ after presenting the application to the town superintendent ” (of highways). No step was taken in the County Court within thirty days after the application had been presented to the town superintendent, but on October twentieth, i. e., forty-three days later, the attorneys for the applicants applied to the town superintendent for a formal written admission by him of service of the application as of October twentieth, which admission was given although no other application had been filed with him than that of September'seventh. The town superintendent was informed at the time by the attorney for the applicants that the time in which the matter might be presented to the County Court on the service of September seventh had gone by and that the purpose of an admission of service as of later date was to obviate this situation. The result of the town' superintendent’s admission of service as of October twentieth, if within his power, was .to revive the initial step in a proceeding which was dead through lapse of time. This proceeding takes property in invitum and places the burden of assessment on property deemed to be benefited by the improvement. It is the settled rule of law that, under such circumstances, all material provisions of the statute must be complied with strictly. (Matter of Wood, 111 App. Div. 781 ; Merritt v. Village of Portchester, 71 N. Y. 309 ; People ex rel. Commissioner of Highways v. Connor, 46 Barb. 333 .) Where the statute has provided that any application to the County Court must be made within thirty days after a specified event, such legislative determination as to • a period of limitation must be deemed material, and there can be found in the statute in

p. 345
question no express power in the town superintendent to waive the provision which declares the limitation, and such power cannot be implied simply to confer a jurisdiction in the County Court which otherwise did not exist, for a compliance with sections 192 and 193 of the Highway Law were initial steps in the jurisdiction of the County Court to maintain the proceeding. Hence the subsequent order of that court appointing the commissioners aforesaid, when challenged' by the aggrieved property owners, should have been vacated and the proceeding dismissed.

The order of the County Court of Suffolk county should be reversed, with ten dollars costs and disbursements, and motion to vacate order of said court appointing commissioners granted, with ten dollars costs.

Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred.

Order of the County Court of Suffolk county reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

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