#### THE PEOPLE OF THE STATE OF NEW YORK ex rel. HELEN C. BEARDSLEE and GUY R. BEARDSLEE *v.*HENRY A. DOLGE, Commissioner of Highways of the Town of Manheim.

*Laying out of highways*— *drawing of jurors by the clerk*— *an irregularity therein will not deprive the commissioners of jurisdiction*— *section 75 of article 4, title*1, *chapter*16, *part*1, *Sevised Statutes, as amended by chapter*696 *of*1881 — *the hearing is to be had on the writ and return only.*

Upon the healing had upon the return to a writ of *certiorari*to review the pro. ceedings of commissioners of highways in altering and laying out a highway across the lands of the relator, it was claimed that the town clerk violated the provisions of section 75 of article 4, title 1 of chapter 16 of part 1 of the Revised Statutes, as amended by chapter 696 of 1881, in that he did not, in the first instance, remove from the box containing the names of jurors the names of those who were interested in the lands to be taken, or were of kin to the owners thereof, but proceeded to draw from the entire list of jurors selected and returned for the town.

*Held,*that as the name of no person who was interested in the land to be taken, or was of next of kin to the owners thereof, was drawn from the box, the refusal of the clerk to exclude the names of such persons therefrom was a mere irregularity which, in the absence of injury to the relators, might be disregarded.

That any error in the details of the preparation of the box prior to the drawing of the jury, not prejudicial to the relators, and not depriving them of any substantial right, would not deprive the commissioners of jurisdiction to lay out the road, nor would such an irregularity lead to a reversal of the proceedings.

The hearing must be had upon the writ and return, and the court will not review facts stated in the return where they are founded upon personal inspection and individual knowledge of the locality, because such personal inspection and knowledge cannot be recorded and reproduced.

CeRtiobARI to review the proceedings of tlie commissioners of highways of the town of Manheim, in laying out a public road across the lands of the relators in the said town.

*S. Earl*and *Wm. F. Lansing,*for the relators.

*C. J. Palmer,*for the respondent.

Boardman, J.:

The relators have brought this writ of *certiora/ri*to review proceedings to alter a highway, and lay out a public highway across *311tbeir lands. The first error relied upon relates to the manner of drawing the jury by the town clerk. The Bevised Statutes as amended by chapter 696 of the Laws of 1881, section 1, provide that the clerk shall deposit in the box the names of the persons selected and returned as jurors, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and draw therefrom the names of twelve persons and make certificate, etc. The clerk did. not, in the first instance, select from the list of jurors the names of those who were interested in the lands to be taken or of kin to the owners thereof, but proceeded to draw from the entire list of jurors selected and returned for the town.

The counsel for the relators requested that the clerk first select and take from the'box the names of the persons so interested, or of kin to the relators before the drawing of the jury, which request was denied. An objection to the jury so drawn was again made, after it was drawn, and the objection was overruled. A motion to dismiss the proceedings at the close of the hearing upon the same ground, that is, that *“*the jury was irregularly drawn,” was denied.

No person’s name who was interested in the real estate to be taken or of kin to the relators was drawn from the box. No further or other objection was taken to the jury as finally certified or to the rejection of any of the jurors whose names were drawn. The return certifies that the jury as drawn was unexcejrtionable. The question is then presented whether the exclusion from the box of the names of jurors interested in the lands or related to the owners, before the drawing, is a jurisdictional requirement; or was the failure so to do a mere irregularity, which, in the absence of injury to the relators^ may be disregarded.

’ The object of the law is plainly to secure a. disinterested jury. The inode prescribed tends to accomplish such result. The clerk must always, in his exclusion, act informally and with more or less ignorance of such jurors as may be interested or related. If the exclusion of *all*such persons is jurisdictional, the failure as to one or more of them would be equally fatal. This would seem to be a dangerously technical rule without a sound or sensible basis. In *Buckley*v. *Drake*(41 Hun, 384), an applicant for the road is held to be a competent juror on the proceeding. Yet it was held that *312tlie exclusion of the applicants from the box was not so far jurisdictional as to justify an action to restrain the commissioners of highways from entering upon the lands and opening the highway. See, also, *People ex rel. Downey*v. *Dains*(38 Hun, 43). This could not be true if the proceedings were void. The same question was under discussion in this court.in the case of the *People ex rel. Edwards*v. *Potter*(36 Hun, 181), where it is held, that the applicants for the road are not competent jurors, but that the failure of the clerk to deposit tlieir names in the box, although not to be excluded under the terms of the law, was not error. It was further held, that unless the relator was injured by the failure of the clerk to comply with the terms of the law in preparing the box before drawing the jurors, it would not invalidate the proceedings. The remarks of Mr. Justice Follett in the last case are applicable to the one under consideration. We conclude that any error in the details of preparation of the box prior to the drawing of the jury, not prejudicial to the relators and not depriving them of any substantial right, would not destroy the jurisdiction to lay out the road, nor would such an irregularity lead to a reversal of the proceedings. *(People*v. Petrea, 92 N. Y., 128; Code, §§ 2140, 723.)

The relators further claim that the action of the commissioners should be reversed, because the proposed road runs through the barn-yard, etc., of the relators. The language of 'the return is an answer to such claim. It says, *“*That none of said alteration and highway passes through the buildings or barn-yard” of the relators, *“*nor do they pass through any yard of the said Beardslee.” Again, the motion to dismiss the proceedings on that ground was denied, “ for the reason that the survey shows that the proposed alteration passes over the top of the clay-bank and not through any barn-yard or buildings.” The hearing must he upon the writ and return (38 Hun, 43, supra); and the court will not review facts stated in the return where they are founded upon personal inspection and individual knowledge of the locality, because such personal inspection and knowledge cannot be recorded and reproduced. No appellate court can intelligently and fairly review a decision upon facts so ascertained. *(People ex rel.*Mayor, etc., v. McCarthy, 102 N. Y., 643.) The commissioners and jurors personally inspected and went over the proposed road, and it is certified, after such inspection, that it *313did not pass tbrongh any barn-yard or buildings. We must accept such determination as true, while there is little in the evidence of Mr. Beardslee to overthrow it. The .discontinuance of. the old highway was an incident to the alteration and necessarily followed it. *(People ex rel. Bowen*v. Jones, 63 N. Y., 310.) There was no error, therefore, in making the discontinuance of the old road a part of the order.

The proceedings and order of the commissioner of highways must be affirmed, with fifty dollars costs and disbursements in his favor against the relators.

Follett, J., concurred in the result; Hardin, P. J., not voting.

The proceedings and order of the commissioner of highways affirmed, with fifty dollars costs and disbursements in his favor against the relators.