Majority
Headnote
Certiorari—Order Laying out Highway — Appeal.- A writ of certiorari brought to review an order of a County Court affirming a report of commissioners for the laying out of a highway, on the ground of alleged irregularities in the proceedings affecting the power and jurisdiction of the County Court, is properly dismissed under sections 3131, 3133 of the Code of Civil Procedure, as the decision in regard to such questions may he reviewed on appeal.The writ was directed to the County Court of Onondaga county, to review an order made by that court affirming the report of commissioners to determine upon the necessity of laying out a highway in the town of Geddes, through the lands of the relator, in which they found it was necessary to open the highway and take the relator’s land therefor.
The appellant claims that, notwithstanding the fact that section 89 of the Highway Law (Ch. 568, Laws 1890; amended, ch. 686, Laws 1892) declares that the determination of the
This proceeding does not appear to have been considered by the Appellate Division upon the merits, but the writ was dismissed for the reason that appellant’s remedy, if any, was by appeal from the order of the County Court.
Section 2121 of the Code of Civil Procedure provides as follows: “ A writ of certiorari cannot be issued, to review a determination, made, after this article takes effect, in a civil action or special proceeding, by a court of record, or a judge of a court of record.”
Section 2122 reads: “ Except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued, in either of the following cases : * * * 2. Where the determination can be adequately reviewed, by an appeal to a court, or to some other body or officer.”
This court has very recently decided in the case of Matter of De Camp ( 151 N. Y. 557 ) that while section 89 of the Highway Law makes the decision of the Oounty Court final as to the question of the necessity of the proposed highway and the compensation of the landowner, yet its decision may be reviewed on appeal as to questions affecting the power and jurisdiction of the County Court.
In the case at bar the appellant insists that the petition is defective; that the court had no power to appoint either set of commissioners; that this and other defects deprived the court of jurisdiction.
In view of the statutes and decision cited we are of the opinion that the appellant mistook its remedy in the premises, and the writ of certiorari and all the proceedings based thereon were properly dismissed.
The order should be affirmed, with costs.
All concur.
Order affirmed.
Cases cited
- Le Roy v. Mayor of New-York 20 Johns. 430 at 438 p. 215
- In re Canal & Walker streets 12 N. Y. 406 p. 215
- People ex rel. Addison & Elkland Plank-road Co. v. Freeman 3 Lans. 148 p. 215
- People ex rel. Seymour v. Canal Board 7 Lans. 220 p. 215
- People ex rel. Sheridan v. Andrews 52 N. Y. 445 p. 215
- People v. Stilwell 19 N. Y. 531 p. 215
- People, ex rel. Smith v. Commissioners of the Department of Fire & Buildings 103 N. Y. 370 p. 215
- People ex rel. Waldman v. Board of Police Commissioners 82 N. Y. 506 p. 215
- People ex rel. Davis v. Hill 53 N. Y. 547 p. 215
- Beardslee v. Dolge 143 N. Y. 160 p. 215
- New-York Central Railroad v. Marvin 11 N. Y. 276 p. 215
- In re Commissioners of Central Park 50 N. Y. 493 p. 215
- People ex rel. Schuylerville & Upper Hudson Railroad v. Betts 55 N. Y. 600 p. 215
- In re the Metropolitan Elevated Railway Co. 128 N. Y. 600 p. 215
- In re Southern Boulevard Railroad 141 N. Y. 532 p. 215
- In re Swan 97 N. Y. 492 p. 215
- People ex rel. Taylor v. Turner 8 App. Div. 395 p. 215
- Weeks v. De Camp 151 N. Y. 557 p. 216