In re the Proceeding to Lay out a Highway at Tappan — 64 N.Y. St. Rep. 262

Majority

p. 262

In the Matter of the Proceeding to Lay out a Highway at Tappan, in the Town of Orangetown, Rockland County.

(Supreme Court, General Term, Second Department,

Filed December 10, 1894.)

Headnote

Highways—Commissioners’ report—Confirmation.

An order of the county judge laying out a highway will be confirmed, where there is no regularity in the proceedings and the record satiffies the , general term that the highway is necessary and the damages awarded to ' the contestants are sufficient.

Motion for a confirmation of an order laying out a highway.

A. & A. X. Fallon (Frank Comisky, of counsel), for petitioners ; F. H. Ernst, for German Masonic Ass’n.

This is an application under § 90, chap. 568, of the Laws of 1890, for an order confirming an order of the county court of Rockland county to lay out a highway at Tappan, in the town of Orangetown, in that county. On the 6th day óf June, 1893, the petitioners applied to the commissioners of highways of the town of Orangetown to lay out the highway mentioned in the petition set out in'the record before us. Before 30 days thereafter, the petitioners, by duly-verified petition, applied to the county court for an order appointing three commissioners to determine upon the necessity of such highway, and, in case they found such highway necessary, to assess the damages by reason of the laying out thereof. The county court appointed the commissioners, who made.and took the oath of office required by law. Due notice was. given of the time and place of meeting. The commission was attended by the parties interested and by the commissioners of highways of the town of Orangetown. They personally examined the highway proposed to be laid out, and they were attended by representatives of the German Masonic Home, the respondents in this proceeding, who appeared personally and by counsel,' and took testimony, and reduced the same to writing, on the question of damages. The commissioners then reported to the court that the highway should be laid out, but the county court declined to confirm the report, holding that, under the strict construction of the statute, the commissioners should first certify that the highway was necessary. The county judge therefore sent the matter back for a further hearing before the same commissioners, who appointed a time and place of hearing, and both questions, that of necessity of the highway and damages to the German Masonic Temple Association, were fully litigated. The commissioners then made a unanimous report to the court, finding that the highway was necessary, and fixing the

p. 263

damages to the German Masonic Temple Association. The commissioners of highways of the town of Orangetown certified to the ■county court that, in their opinion, the highway was necessary. On such certificate and proofs, the county judge made an order bearing date April 30, 1894, laying out such highway. That order is, under the section above quoted, now presented to this court for confirmation. There is no irregularity in the proceedings, and our examination of the records satisfies us that the public highway in question was necessary, and that the damages awarded to the contestants were sufficient. More than three-fourths of the property through which the proposed road will pass has either been dedicated to the town for such purposes, or the owners waive their claims for damages, and consent to its construction. It is already constructed by private subscription for three-fourths of its entire length. The road, as laid out, avoids two dangerous railroad crossings at grade, which in all cases is very desirable.

The order applied for should be granted.

All concur.