Majority
p. 342Allyn vs. The Commissioners of Highways of the town of Schodack. NEW-YORK, May, 1838.
Headnote
On a common law certiorari, the court will not review the facts upon which is founded the decision of the judges of the common pleas, upon an appeal to them from an order of commissioners of highways in the laying out of a road.Whether upon such a writ, this court have power to inquire beyond the question of jurisdiction, quere.
This was a certiorari directed to three judges of the court of common pleas of the county of Rensselaer, to bring up proceedings had before them on an appeal from an order of the commissioners of highways of the town of Schodack declaring a certain road to have become a public highway by use, laying out the same accordingly, and directing it to be recorded ; which order’ was affirmed by the judges.
J. Kaon, for the plaintiff in error.
G. Palmer <J- D. Buel, jun. for the defendants in error.
By the Court,
If we can upon this common law writ of certiorari go beyond the question oí jurisdiction in the judges and commissioners, and review questions of law, it is certain that we cannot review questions of fact.
p. 343
Whether this highway had been used for more than 20 years-whether as a public or a private road-and whether the road was required for the accommodation of the public, are all mere questions of fact, which have been passed upon by the judges and commissioners; and if they have erred~ the
We must be governed by the return as amended, and not by the other papers which have been submitted : and looking at the case on the facts stated by the judges, there is no ground upon which we can interfere. error cannot be reached by this proceeding. - - -
Proceedings affirmed.