
    The People ex rel. John M. Sammis v. The Board of Supervisors of Queens County.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Highways—Buildings—Laws 1873, chap. 773.
    Since the passage of chap. 773, Laws 1873, either the consent of the owner or the certificate of the highway commissioners is essential to the laying out of a highway through buildings, and in the absence thereof the board of supervisors has no power to appoint commisssoners to lay out such road.
    2. Same.
    Where the highway commissioners investigate the subject and thereupon refuse to make the certificate, it cannot be said that they could not, or would not, act within the meaning of chap. 314, Laws 1838.
    Certiorari to review a resolution of the board of supervisors appointing special commissioners to lay out a road in the village of Oyster Bay through premises of relator, on which there are buildings used for the purposes of trade.
    On two separate applications for that purpose the highway commissioners met in January and May, 1890, viewed the premises, heard the parties, and after consideration refused to grant a certificate of the necessity of such road. In March, 1890, a jury also rendered a verdict against it. The'applicants then applied to the board of supervisors, pursuant to chap. 314, Laws 1838, as amended by chap. 164, Laws 1848, for the appointment of special commissioners to lay out the same proposed road, and the resolution in question was made.
    
      Thomas Young, for relator; A. N. Weller (Charles 11. Street, of counsel), for resp’ts.
   Pratt, J.

It seems plain that prior to 1873 the proposed highway could not have been laid out over the relator’s property without his consent That act only authorized such a laying out upon the certificate of the commissioners of highways. Laws of 1873, chap. 773 ; Thompson on Highways (3d ed), 220; 2 R S., 1238 and 1239 (Banks’ 7th ed.).

In this case no such certificate was obtained, but was refused by the commissioners, and there was, therefore, no power vested in the board of supervisors to appoint commissioners, and the commissioners so appointed had no power to lay out the road.

This road falls under the act of 1873, and under the previous act of the Law of 1838, as amended by chap. 164 of Laws of 1848.

The law of 1873 was made expressly to apply to such an application as this, and it contains an express prohibition against laying out such road except upon the condition before referred to, viz, certificate of commissioners of highways. Whatever may have been the powers of the board of supervisors prior to 1873, it is plain that since that act either the owner’s consent or the certificate of the highway commissioners are essential to the laying out of such a road.

It cannot be claimed that the Act of 1838 was intended to provide a method by which a road could be laid out through buildings without the owner’s consent; but it was the object of the Act of 1873 to effect that purpose, but only upon the conditions therein expressed.

It may be further said that irrespective of the Act of 1873 we do not think a case was made for action upon the part of the board of supervisors for the reason that it did not appear that the road was important, and that the commissioners of highways could not or would not act within the meaning of the Act of 1838.

If the foregoing views are correct it follows that the action of the board of supervisors was without authority and must be reversed.

Proceedings and order laying out highway reversed.

Barnard, P. J., and Dykhan, J., concur.  