In re Baker — 66 N.Y.S. 242

Majority

p. 242

(54 App. Div. 21.)

In re BAKER et al.

(Supreme Court, Appellate Division, Third Department.

September 25, 1900.)

Headnote

Highways—Board of Commissioners — Confirmation — Appeal — Amending Report.

Where, pending an appeal from an order of the county court confirming the report of commissioners appointed to pass on the question of laying out a highway, an application was made to the county court to ■compel an amended return by the commissioners touching the evidence taken before them, the county court properly denied the application, since the record for the appellate court should be the exact case considered by the county court.

Appeal from Washington county court.

Application by ’Samuel D. Baker and another to lay out. a highway and discontinue a portion of a highway. From an order of the county

p. 243

court denying an application for an order directed to the commissioners for an amended return, applicants appeal.

Affirmed.

Commissioners were appointed by the county court to pass upon 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 them. The county court denied the application.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.

Willard Robinson (Edgar Hull, of counsel), for appellants.

John B. Conway (Fred A. Bratt, of counsel), for respondents.

We think the county court properly denied the application. If the appeal had 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 $10 costs and disbursements.