In re Mills — 71 N.Y. St. Rep. 646

Majority

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In the Matter of the Application by Glenside Woolen Mills to Lay out a Highway. John K. Doyle et al., App’lts.

(Supreme Court, General Term, Fourth Department,

Filed December 26, 1895.

Headnote

1. Highway—Opening—Decision oe commissioners.

The purpose of section 89, chapter 568 of 1890, was to allow persons interested in a proceeding for opening a highway, who desire to apply for an order vacating or modifying the decision of the commissioners, thirty days within which to institute the application or motion, and it is not its purpose to require the application to be heard or made in court within that time.

2. Appeal—Decision oe commissioners.

An order of the county court, dismissing application to vacate the decision of the commissioners appointed to lay out a highway, without a hearing on the merits, is' appealable.

8,. Same—Stipulation.

An order, dismissing such application, will not be held to have been entered by consent of applicant, so as to prevent his appealing therefrom, merely because it was entered in pursuance of a stipulation made for the ■purpose of correcting the order so that it should state truthfully the effect of the decision of the county court.

Appeal from an order, denying a motion to set aside the report of the commissioners.

M. E. Driscoll, for app’lts;

Charles R.Milford, for resp’t.

This is an appeal from an order denying the appellants’ motion to set aside the report of commissioners appointed under the highway law to determine the necessity of a proposed highway in the town of Slcaneateles, and to assess the damages by reason of laying out and opening, the same. The commissioners determined that the highway was necessary, and that none of the persons through whose land it was proposed tó be laid were entitled to any damages therefor. The report or decision of the commissioners was made March 14, 1894, filed

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in the office of the clerk of the town of Skaneateles March 15, 1894, and in the office of the clerk of Onondaga county March 16, 1894. Within thirty days from the time of the fihng of the petition in the town clerk’s office, and on the 14th day of April, 1894, the appellants served upon the attorney for the petitioner, a notice that, on the affidavits accompanying it, a motion would’ he made on the 27th of the same month, at ten o’clock, before the court appointing such commissioners for an order vacating and setting aside their report or decision. On that day the parties appeared before the court; whereupon the attorney for the respondent objected to the hearing of the motion, on the ground that it was not made within thirty days after the fifing of such report or decision, as required by section 89, ch. 568, Laws 1890; and the court, without passing upon the merits, sustained the objection, and denied the appellants’ application, with $15 costs. The order was entered June 25, 1894. On the 13th of the following month, the appellants appealed to the general term of this court. Upon an application made to the county court, on the stipulation of the parties, May 1, 1895, the order entered June 25, 1894, was vacated and set aside, and another order entered in its place and stead, whereby it was ordered and adjudged that the preliminary objection interposed to the hearing of the motion or application to vacate the report or decision was sustained, and the motion was dismissed, with fifteen dollars cost. From the last order the appellants appealed to this court, May 28, 1895.

The first and only question relating to the merits of this appeal is whether, under section 89, the appellants’ motion to vacate the report or decision of the commissioners was in time. So far as material to this question, that section provides:

“Within thirty days after the decision of the commissioners shall have been filed in the town clerk’s office any party interested-in the proceedings may apply to the court appointing the commissioners for an order confirming, vacating or modifying their decision, and such court may confirm, vacate or modify such •decision. If the decision be vacated the court may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on, upon the service of papers upon adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county court shall be final, excepting that a new. hearing may be ordered as herein provided.”

The contention of the respondent is that, inasmuch as the motion was not actually brought to a hearing before the court within thirty days after the decision was filed, it had no power to hear it, and that, under the statute, the decision of the commissioners became final; citing several lexigraphic definitions of the word ‘“motion” as sustaining that contention. Thus, the question

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presented is whether this statute should be construed as requiring; an actual hearing of the application before the court within thirty days after the decision, or as requiring the party seeking to vacate or modify such decision within thirty days to inaugurate the application or motion by- the serving upon the adverse parties of the papers required to be served as the basis of such motion or application. That provisions of a statute which limit in point of time the right to move for a new trial, or to take an appeal, are to be construed in favor of the party desiring a review, is a well-established principle of the law relating to the construction of the statutes. Suth. St. Const. § 369, and cases cited in notes. Applying this rule to the statute under consideration, we are led to the conclusion that ite purpose was to allow persons interested in the proceeding, who desire to apply for an order-vacating or modifying the decision, thirty days within which to institute the application or motion, and that it was not its purpose-to require the application to be actually heard or made in court within that time. If the respondent’s contention were to be upheld, and the statute construed as requiring an actual application in court within thirty days, it might often result in great hardship to the party applying for such an order, and actually prevent him from availing himself of the remedy provided for, without any fault or neglect upon his part. On the other hand, if the-construction we have placed upon this statute prevails, it will result in no injury to the opposing party, and will permit one who-seeks to avail himself of this provision a certain opportunity to-do so. We are of the opinion that the learned county court erred in dismissing the appellants’ application, and that the order should be reversed.

. We think the respondent’s claim that the order appealed from was" entered in pursuance of a stipulation which would prevent the-appellants from appealing therefrom cannot be sustained. It is manifest that the purpose of the stipulation was'to aid the appellants on an appeal by correcting the order so as to make it conform to the facts, show the actual determination made by the county court, and that it did not decide the question upon the merits. Under such circumstances, it should not, we think, be held that this order was so far entered by consent as to prevent the appellants from prosecuting their appeal. Indeed, there is no pretense that the appellants consented to the order. They were vigorously opposing it. The stipulation was for the purpose of correcting the order so that it should state truthfully the effect of the decision of the learned county court. The court having erroneously held that the motion or application was not made in time, and having refused to pass upon the merits, the order dismissing the application was, we think, appealable to this court. In re City of Buffalo, 64 N. Y. 547 .

Order appealed from reversed, with $10 costs and disbursements, and proceeding remitted to the Onondaga county court,

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to the end that the appellants’ motion may, be considered and decided upon the merits.

Cases cited

In re City of Buffalo 64 N. Y. 547 N.Y. 1876-04-04 p. 648