#### In the Matter of the Application of George Q. Laidlaw and Frank Rogers to Lay Out, Alter and Extend Newport Avenue, a Highway in the Town of Islip, and for the Assessment of Damages Therefor. George Q. Laidlaw and Frank Rogers, Respondents; Mary E. Gillette and Others, Appellants.

Second Department,

May 29, 1914.

Highways — proceeding to lay out, alter and extend highway— order appointing commissioners — filing nunc pro tunc — failure to file undertaking of commissioners — appearance of attorney for town superintendent as attorney for applicants — failure to appoint commissioners within thirty days after service of application on town superintendent.

An order appointing commissioners in proceedings to lay out, alter and extend a highway may be filed *nunc.pro tuno*after the commissioners have acted.

An omission to file the undertaking of commissioners under section 193 of the Highway Law may be corrected under section 721 of the Code of Civil Procedure.

The appearance of the attorney for the town superintendent of highways as attorney for the applicants in a proceeding for the improvement of a highway is not necessarily a sufficient ground to invalidate the proceeding.

Failure of a County Court to appoint commissioners within thirty days after the service of the application on the town superintendent of highways is not a “final decision” adverse to the applicant, within the meaning of section 199 of the Highway Law, so as to preclude another application within two years.

Appeal by Mary E. Gillette and others, opposing property owners, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 30th day of March, 1914, denying their motion to vacate the decision of the commissioners herein, with notice of an intention to bring up for review an order entered in said clerk’s office on the 9th day of February, 1914, directing the re-entry, *nunc pro tunc,*of the order appointing the commissioners herein.

*W. K. Post,*for the appellants.

*Alfred H. Dupree [George H. Furman*with him on the brief], for the respondents.

*756Putnam, J.:

This appeal seeks to set aside and vacate these highway proceedings, to which have been made several objections which the County Court has overruled.

1. The order of July 22, 1913, appointing commissioners, was in writing, duly made and signed at a Special Term of the County Court held at Patchogue. It was not filed or entered until after the commissioners had acted. But the making of the order was sufficient to give jurisdiction, so that it could be ordered to be filed *nunc pro tunc. (Eighmy*v. *People,*79 N. Y. 546; *Gerity*v. *Seeger & Guernsey Co.,*163 id. 119; *Loper*v. *Wading River Realty Co.,*143 App. Div. 167.)

2. The same principles apply to the omission to file the undertaking under section 193 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as amd. by Laws of 1910, chap. 344), which by the same order was thereafter filed *nunc pro tunc.*

The undertaking, however, had been presented to the court, and was recited in its order of July 22, 1913. An omission immediately to file the instrument was not jurisdictional, but was corrected under section 721 of the Code of Civil Procedure, and the order of January .28, 1914, was properly made for that purpose.

3. The appearance of the attorney for the town superintendent of highways, who acted also as the attorney for these applicants, is not shown to be a sufficient ground to invalidate these proceedings.

4. Questions to the witnesses on these proceedings in a leading form, and the exceptions taken thereto, are not matters reviewable on this appeal.

5. The more serious objection is as to alleged prior application to lay out this same highway.. This court had held that such prior proceeding failed, because the County Court had not appointed commissioners within thirty days after the service of the application on the town superintendent of highways. *(Matter of Laidlaw,*153 App. Div. 343.) The present application followed within less than two years thereafter, notwithstanding the provision, “If the final decision be adverse to the applicant, no other application for laying out, altering or discon*757tinuing the same highway shall be made within two years.” (Highway Law, § 199.)

This last clause of section 199, embodying a two-year limitation, comes from Laws of 1890, chapter 568, section 89. It appears also in section 119 of the act of 1890, where it forbids, in the same words, a 'reapplication for a private road.

Before 1808 an application to open a road, if once denied, might be again renewed before different county judges. *(Bruyn*v. *Graham,*1 Wend. 370, 374.) But in 1808 (Laws of 1808, chap. 205, § 2; R. L. of 1813, chap. 33, § 37), where the judges had affirmed proceedings to lay out a road, it was enacted that such decision is conclusive, and should not be taken up or altered except by the same judges if in office. This, however, did not make the refusal to lay out a road such a bar to a further application. *(Bruyn*v. *Graham, supra.)*

New Jersey statutes, however, forbade a second application for same road for a year after it had been refused. But this prohibition was held to apply only to a prior decision on the merits, and not to a proceeding vacated because of a failure of the surveyors- to take the oath of office. *(State*v. *Potts,*4 N. J. Law, 347.)

Early New York statutes favored the resisting landowner. If he stood out, the question of public need for the road went first to a jury, and afterwards by appeal to the county judge, would he passed upon by referees. (1 R. S. [4th ed.] 1047, pt. 1, chap. 16, tit. 1, art. 4, § 103; Laws of 1847, chap. 455, § 8.) But when the referees determined the question of necessity for such a road, repose for four years followed, during which period the decision should “remain unaltered.” (Laws of 1847, chap. 455, § 9.)

An attempt to remove the burdensome obstacles by appeals was made in 1890 when the Highway Law was redrawn. It sought to make the County Court a final tribunal. (Gen. Laws, chap. 19 [Laws of 1890, chap. 568], § 89.) As, however, the Legislature could not cut off inquiry into the County Court’s jurisdiction, the enactment that the “ decision of the County Court shall be final” was held to ..stop'the litigation at that point “on the two questions as to the necessity of the proposed highway and the compensation to which the landowner was *758entitled.” (Per Andrews, Ch. J., in *Matter of De Camp,*151 N. Y. 557, 563.) This was carried into the Consolidated Highway Law (Laws of 1908, chap. 330; Consol. Laws, chap. 25; Laws of 1909, chap. 30), so as to show how far the decision of the County Court is final. Its order on a motion to vacate may be appealed from so as to review its jurisdiction, and its rulings upon exceptions taken at the hearing (§ 199). The decision of the County Court still concludes as to the two questions of the necessity for the road and the landowner’s compensation.

Hence “the final decision * * * adverse to the applicant,” which stops for two years any new attempt to open the same road, is the fundamental determination of road or no road. When, after due hearing before commissioners, the County Court finds that public necessity, as it then exists, does not require such a highway, this decision halts further agitation for two years. After that time the needs for this road by the population as increased may again be put forward. Upon a mere defect of process which had undone and nullifiéd all that had been attempted, there would be no sense in a two years’ limitation before a new application. Modern methods of procedure require that formal defects be promptly remedied, and if they are fatal, so as to invalidate a first application, it would be abhorrent to just principles to have to wait two years more before starting anew along the steps marked out by the statute. Otherwise, courts would let misplaced technicalities hamper public progress.

Accordingly, in other States, these prescribed intervals before second applications to open roads, are judicially limited to prior decisions that conclude as to the facts, and are really upon the merits. (37 Cyc. 127 (d).)

Hence, I think the learned County Court rightly denied appellants’ motion to vacate these proceedings, and I advise to affirm its order, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Order of the .County Court of Suffolk county affirmed, with ten .dollars costs and disbursements. " ; '