#### Thomas Berridge, Plaintiff, *v.*Mary Shults, Defendant.

(Supreme Court, Greene Special Term,

September, 1900.)

Highways — Distinction, as to private road, between Constitution and Highway Law — Jury.

The jury prescribed by the Highway Law in the matter of laying out a private road is not the jury contemplated by section 7 of article I of the State Constitution, declaring that “ Private roads may be opened in the manner prescribed by law ”.

Where, therefore, the owner of a quarry, having no means of ingress or egress and desiring to reach a highway, proceeds under the Highway Law to have a private road laid out over adjoining property and a jury of six men fix the damages, the proceeding confers no-rights upon the owner of the quarry and the adjoining owner may restrain her from proceeding with the construction of the private-road upon his land.

Motion to continue an injunction *pendente lite.*The action was brought to restrain the defendant from opening and using a private road.

Henry Van Hoesen, for plaintiff.

Mark Duntz, for defendant.

Chase, J.

The defendant is the owner of a tract of land containing about eighty-two acres, upon which is located a limestone quarry. The tract of land does not adjoin a public highway, and the defendant has no means of ingress or egress, without trespassing upon the lands of others. The defendant recently commenced a proceeding to lay out a private road from his said quarry lands to-

*445a highway, and the road, as so proposed, passed over the lands of the plaintiff and another adjoining owner. The proceeding was instituted and carried on as provided by sections 106 to 116, inclusive, of the Highway Law (L. 1890, ch. 568). The plaintiff objected to the jurisdiction of the commissioners of highways, and to the jury drawn by them in such proceedings, and has never consented, and does not now consent, to the laying out of such private road. He has in no way waived his right to object to the constitutionality of the provisions of the Highway Law relating to private roads. The jury called by the commissioners of highways certified to the necessity of a private road, and fixed the damages of the plaintiff at the sum of $100. The defendant has tendered to the plaintiff the sum of $100, the amount of such damages, which has been refused by the plaintiff. Thereafter the defendant entered upon that portion of the plaintiff’s property described in said proceedings, to lay out a private road, and commenced tearing down fences, leveling stone walls, and cutting down growing trees thereon, and threatens to continue to tear down fences, level stone walls, cut down growing trees and complete said private road across said premises and use the same. The plaintiff alleges that the loss and damage to him from such trespass will be constant and continuous, and would cause serious and irreparable injury to him, and to prevent such injury has brought this action to restrain the defendant from opening and using said road.

The right to take private property for private roads is conferred by the second paragraph of section 7, article I of the Constitution of the State of New York, and is as follows: *“*Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding shall be paid by the person to be benefited.” The jury provided by the sections of the Highway Law relating to laying out a private road is not such a jury as is contemplated by the Constitution. People ex rel. Eckerson v. Trustees, 151 N. Y. 75; S. C., 80 Hun, 385. See Matter of Tuthill, 163 N. Y. 133.

The defendant did not acquire the right to enter upon the premises of the plaintiff by reason of the proceedings to lay out a private road. This is not an ordinary trespass. The defendant insists upon her right to take the strip of land by virtue of the *446proceedings to lay out a private road as before stated, and unless the injunction is continued the plaintiff will cut down the remaining trees and do the work necessary to complete the private road and use the same until the further order of the court. As the proceedings for laying out the private road were void, the plaintiff had a right to ignore the same. 12 Am. & Eng. Ency. of Law, 147. The authorities cited by the defendant to the effect that a judgment or proceeding should not be attacked collaterally, do not apply to this case, for the reason that they all relate to cases where errors or frauds were committed after jurisdiction had been obtained. They do not apply in a case like the one now before me, where the proceeding by reason of failure to comply with the constitutional provisions is entirely without force or effect. The injunction should be continued *pendente lite.*

Motion granted.