#### People *ex rel.*Scrafford *et al. v.*Stedman *et al.,*Commissioners of Highways.

*(Supreme Court, General Term, Fourth Department.*

July 1, 1890.)

1. Highways—Establishment by Statutory Proceedings—Certiorari.

Since the appeal from commissioners of highways to the county judge allowed: by 2 Rev. St. N. *Y.*(7th Ed.) p. 1246, § 84, only authorizes a review of the merits-involved in their order, *certiorari*will lie to review the regularity of their proceedings.

2. Same—-Posting Notices.

2 Rev. St. N. *Y.*(7th Ed.) p. 1239, § 59, requires every person applying for the laying out of a highway to cause notices in writing to be posted in three of the most public places in the town, specifying as near as possible the proposed route of the highway, etc. *Held,*that it is not sufficient to deposit such notices in the mail, addressed, to the persons whose land is to be affected by the proposed highway.

8. Same-Waiver of Defects.

The appearance by one claiming to be the attorney of the land-owners, and his argument against the necessity of the highway, are not sufficient to waive the failure of the commissioners to comply with the statute in the preliminary proceedings.

*Certiorari*directed to the commissioners of highways of the town of O wego, Tioga county, ST. Y., to review an order made by said commissioners, January 14, 1889, laying out a highway in said town, on the application of John P. Holden, through the lands owned and occupied by John Scrafford, Sarah Scrafford, Mary A. Scrafford, and others. November 24,1888, John P. Holden *788presented a written petition to the commissioners of highways, of the town of Owego, to lay out a highway through the lands of John Scrafford, Sarah Scrafford, and others. No notice was given by the petitioner to the commissioners of the time and place of drawing the jury. The jury was drawn on the 4th of December, 1888, by the town clerk, and a summons was issued by a justice of the peace, directed to a constable, to summon the jurors so drawn. It appears affirmatively that no notices were posted stating the time and place of the meeting of the jury; nor was any notice given to the owners and parties of the land through which the proposed road was to be laid of the meeting of the jury. December 15, 1888, the jury met, and certified to the necessity of the road. However, after viewing the premises, they refused to sign a certificate that the road was necessary or proper in the place and upon the route mentioned in the petition; and, upon certain representations being made to them by the commissioners to the effect that the road should not be laid in the place described in the petition, and that the commissioners would lay the road south-west of the place described in the petition, they signed and delivered their certificate. Thereafter, on January 14, 1889, the commissioners made an order laying out a highway through the lands of John Scrafford, Sarah Scrafford, and Mary Scrafford, and others, but at a place other than that described in the petition, and other than the place certified and recommended by the jury, and at a point northerly from the place described in the petition. No notice was given to the owners or occupants of the premises of the meeting of the commissioners on January 14th, and only two commissioners signed the order. Notice of the meeting of the commissioners to decide upon the application was given for January 12, 1889. The relators, questioning the jurisdiction of the commissioners, and complaining of the irregularities in their proceedings, applied to a special term, and obtained a writ of *certiorari,*and an argument thereon has been had before this court.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

*C. A. & H. A, Clark,*for relators. *J). T. Bastón,*for respondents.

Hardin, P. J.

1. Defendants contend that the writ of *certiorari*should be quashed because the relators had the right to appeal from the order of the commissioners of highways laying out the road. Attention is called to the provisions of section 2122 of the Code of Civil Procedure. That section provides as-follows: “Except as otherwise expressly prescribed by a statute, a writ of *certiorari*cannot be issued in either of the following cases. * * * (2) Where the determination can be adequately reviewed by an appeal to a court, or to some other body or officer.” We are of the opinion that the proceedings leading up to the order, and the determination evidenced thereby, cannot “be adequately reviewed by an appeal to a court, or to some other body or officer.” The appeal given to the county judge by section 84, p. 1246, 2 Rev. St. (7th Ed.,) only authorizes a review of the merits involved in the order. *People*v. *Harris,*63 N. Y. 391. In the opinion delivered in the case just cited, the case of *People*v. *Cline,*23 Barb. 197, (cited to us by the defendants,) was referred to, and disapproved. We are of the opinion that the relators have the right to review the proceedings of the commissioners by a writ of *certiorari. People*v. *Harris,*63 N. Y. 391. The case of *People*v. *Parker,*45 Hun, 432, is an authority for holding that, under a writ of *certiorari,*the title to the office of assessor may not be inquired into, even under the act of 1880, c. 269, as to illegal assessments; but nothing in the case aids the contention of the defendants here.

2. Section 59, p. 1239, 2 Rev. St., (7th Ed.,) requires every person who shall apply for the laying out of a highway to cause notices in writing to be posted in three of the most public places of the town, specifying as near as may be the route of the proposed highway, and the time and place at which the free*789holders will meet to examine the ground. Every such notice shall be posted at least six days before the time specified for the meeting of the freeholders. Chapter 696 of the Laws of 1881 does not in terms repeal or modify section 59 of the Revised Statutes. The petitioner or applicant for the road gave no notice of the timo and place of drawing the jury to the commissioners or to the land-owners; nor was any notice posted, as required by section 59, of the time and place of the meeting of the jury. The notices given by the town-clerk of the time and place of the meeting of the jury contained no specification, as near as might be, of the route of the aforesaid road. It did not in that respect comply with the requirements of section 59, nor was such notice posted up at least six days before the time specified therein for the meeting of the freeholders. The notices were served by depositing the same in the mail, addressed to the land-owners at Owego, E. Y., with the exception of one addressed to Eugene Ferguson, at Flemingville, E. Y. The post-office address of some of the land-owners is “Gaskill Corners, Tioga County, E. Y.” Section 62, p. 1241, Id., requires the commissioners before they shall determine to lay out the highway, after the certificate is made by a jury, to cause notices in writing to be given to the occupants of the land through which the road is to run of the time and place at which they will meet to decide on the application. The notice is to be served three days before the time of meeting. The affidavit of John F. Holden, made January 18, 1889, states that the service was made of such notice on the 7th of January, 1889, on “Mary A. Scrafford, by leaving with Etta Ketta, her daughter, at her residence at Owego, E. Y.” It does not state that Mary A. Scrafford was absent from her residence. The affidavit does not bring the service within the exceptional provision of section 62.

8. The description of the road in the order of the commissioners is quite different from that found in the application made by Holden on the 24th of Eovember, 1888, While it is not needful generally to pass upon the power of the commissioners to make such a great departure from the route proposed by the applicant, or from the one stated in the certificate of the jury, it may be observed that such departure seems to be beyond tlieir power. *People*v. *Carman,*47 Hun, 380. But it is insisted in behalf of the defendants that the irregularities have been waived. The return states that at the time and place that the jury was drawn “Martin S. Lynch, Esq., counselor at law, appeared, and claimed to represent the Scraffords mentioned in said proceedings; and, on the drawing of such jury, and as the names were drawn, made objections to several of the j urors whose names were drawn, such objections being allowed.” The return also states that he “made an argument before said jury against the necessity of laying out said highway.” There is nothing further in the return or other papers before us to indicate that Mr. Lynch had any authority from the land-owners to appear for them, or to make any waiver of any of the statutory requirements. The proceedings to lay out a road must comply with the requirements of the statute in respect thereto. We think no such waiver or consent was shown as should be held sufficient to confer jurisdiction and to validate the proceedings. *People*v. *Village of Whitney's Point,*32 Hun, 508; affirmed, 102 N. Y. 81, 6 N. E. Rep. 895.

4. It seems that Reuben Fraser did not own any lands directly affected by the proceedings brought under review, and that he has no such interest as would authorize him to sue out a writ of *certiorari. People*v. *Schell,*5 Lans. 352. The writ as to Fraser should be quashed, with $10 costs. The order of the commissioners of highways is annulled, with $50 costs and disbursements. Section 2143, Code Civil Proc.

Mabtin, J., concurs. Mebwin, J., concurs in the result.