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Olendorf v. Sullivan

36 N.Y. St. Rep. 74 Court N.Y. Gen. Term Decision date 1891-02-20 English

Delivered by Merwin, J.

Contents

Majority

p. 74
James M. Olendorf, Commissioner of Highways of the Town of Afton, Resp’t, v. Julia M. Sullivan et al., App’lts.
(Supreme Court, General Term, Fourth Department,
Filed February 20, 1891.)

Headnote

Highways—Encroachments—Notice.
Where the order of the commissioner which complies with the statute is annexed to the notice and is referred to in the notice as being annexed, it is to he deemed a part of the notice, so far as its specifications are concerned, and supplies the omissions in the notice itself.
(Cook v. Covil, 18 Hun, 288 , distinguished.)
Appeal from a judgment of the county court of Chenango county, entered December 4, 1889, affirming a judgment of a justice’s court in a proceeding to compel the removal of an obstruction in a highway.
W. B. Matteson, for app’lts; Geo. A. Haven, for resp’t.

Whether there was, by dedication or user, a highway as claimed by the plaintiff, was a question of fact, and the evidence is sufficient to sustain the finding of the jury on that subject, within the principles laid down in Speir v. Town of New Utrecht, 121 N. Y., 420 ; 31 N. Y. State Rep., 414.

By § 103 of title 1, chap. 16 of E. S.; 2 E. S., 8th ed., 1388, as amended by chap. 245 of 1878, it is provided that the commissioner of highways, if in his opinion it be deemed necessary, shall order obstructions or encroachments to be removed so that the highway may be of the breadth originally intended. The order made by the commissioner must be in writing and signed and he must give notice in writing to the occupant or owner to remove such obstructions or encroachments within sixty days. “ Every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment and the place or places where the same shall be.” No fault is found with the order in this case, but it is claimed that the notice was not sufficient. A copy of the order was annexed to the notice and it was referred to in the notice as being annexed. It should therefore be deemed a part of the notice so far as its specifications are concerned. So that then the occcupant by the notice in fact served had all the information the law required to be given. In Cook v. Covil, 18 Hun, 288 , it does not appear that a copy of the order was annexed and besides the order itself was defective. The statute does not require the order to be separately served.

The ruling upon the question put to the witness Briggs was perhaps not strictly correct, but at that stage of the case and in view of the prior evidence it cannot be said to have affected the merits. Code § 3063.

The judgment should be affirmed.

Judgment of the county court of Chenango county affirmed, with costs.

Hardin, P. J., and Martin, J., concur.

Statutes and regulations cited