#### In re GLENSIDE WOOLEN MILLS. In re DOYLE et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Opening Highway — Vacating Decision of Commissioners.

Laws 1890, c. 568, § 89, declaring that, within 30 days after filing of the decision of commissioners in proceedings to lay out a highway, any party interested may apply to the court appointing the commissioners for an order vacating their decision, such motion to be brought on, on the service of papers on adverse parties, according to the usual practice in actions and special proceedings, does not require an actual hearing by the court of the application within 30 days,' but merely that notice thereof be given within that time.

2. Same—Refusal to Hear Application—Appeal.

An order of a county court dismissing application to vacate decision of commissioners in proceedings to lay out a highway, without a hearing on the merits, on the erroneous determination that application was not made in time, is appealable.

3. Appeal—Stipulation as to Entry of Order.

An order dismissing an application will not be *held*to have been entered by consent of applicant, so as to prevent his appealing therefrom, merely because by stipulation it is corrected to truthfullv show the ground oil which the order is based.

Appeal from Onondaga county court.

Application by G-lenside Woolen Mills to lay out a highway in the town of Skaneateles. From an order denying a motion to set aside the report of commissioners, John K. Doyle and others appeal.

Reversed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

M. E. Driscoll, for appellants.

Charles R. Milford, for respondent.

PER CURIAM.

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 upon the necessity of a proposed highway in the town of Skaneateles, 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 to be laid were entitled to any damages therefor. The report or decision of the commissioners was made March 14, 1894, tiled in the office of the *594clerk of the town of Skaneateles March 15, 1894, and in the office of the clerk of Onondaga county March 16, 1894. Within 30 days from the time of the filing 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 be made on the 27th of the same month, at 10 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 30 days after the filing of such report or decision, as required by section 89, c. 568, Laws 1890; and the court, without passing upon the merits, sustained the objection, and denied the appellants’ application, with $15 costs. This 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 $15 costs. 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 proceeding 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 30 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 presented is whether this statute should be construed as requiring an actual hearing of the application before the court within 30 days after the decision, or as requiring the party seeking to vacate or modify such decision within 30 days to inaugurate the application or motion by the service 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 *595to 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 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 its purpose was to allow persons interested in the proceeding, who desired to apply for an order vacating or modifying the decision, 30 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 30 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.

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