In re the Application of Baker — 54 A.D. 21

Majority

p. 21

In the Matter of the Application of Samuel D. Baker and William E. Doig, Respondents, to Lay out a Highway and to Discontinue a Portion of a Highway in the Town of Fort Edward, Washington County, New York, and the Assessment of Damages Therefor. Henry Welch and Others, Commissioners of Highways of the Town of Fort Edward, and Others, Appellants.

Headnote

Order that highway commissioners make a further return—the County Court cannot make it pending an appeal.

While an appeal from an order of a County Court, confirming the report of commissioners appointed to consider the question of laying out a highway, is pending undetermined in the Appellate Division, the County Court has no power to compel such commissioners to make a further return of the evidence taken before them.

Appeal by Henry Welch and others, commissioners of highways of the town of Fort Edward, and others, from an order entitled in the Appellate Division of the Supreme Court, made by the county judge of the county of Washington, and entered in the office of the clerk of the county of Washington on the 12th day of July, 1900, denying their motion for an order directing the commissioners appointed in this proceeding to make a further return of their proceedings, upon the ground, among others, that the county judge of Washington county did not have jurisdiction to make such an order.

Commissioners were appointed by the County Court to pass upon

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the question of laying out a highway. . Testimony was' taken and' the commissioners made their report.. On motion the report was confirmed by the County Court. , An appeal was taken to this court from the order of confirmation. Pending the appeal this application was made to the County Court to compel an amended return by the commissioners touching the evidence taken before .therm The County Court denied the application.

Willard Robinson and Edgar Hull, for the appellants.

John B. Conway and Fred A. Bratt, for the respondents.

We think that the County Court-properly denied the application.If the appeal has not removed the matter beyond the jurisdiction of the County Court it is still an appeal from the judgment of the County Court based upon the report of the commissioners and the evidence before the court as returned by the commissioners. To make a different record, with different facts for this court, is not permissible. That would not in any sense be reviewing the County Court. The record which, comes here must be the exact case considered by the County Court.

The order of the County Court is affirmed, with ten dollars costs and disbursements.

. All concurred.

Order affirmed, with ten dollars costs and disbursements.