
    The People ex rel. John Scrafford et al., v. Wheeler Stedman et al., as Commissioners.
    
      (Supreme Court, General Term, Fourth Department
    
    
      Filed July 1, 1890.)
    
    1. Highways — Certiorari.
    Where there are substantial irregularities in the preliminary proceedings in an application to lay out a highway, the matter may properly be reviewed by certioran'i. The person aggrieved is not confined to an appeal from the order laying out the róad.
    2. Same — Notices.
    Section 59. 2 R. S., 7th ed., 1239, requiring a person who applies for the laying out of a highway to post certain notices, has not been repealed or modified by chap. 696, Laws of 1881.
    ■3. Same — Service.
    Section 62, 7th ed. R. S., p. 1241, requires the commissioners to give notice to the land owner of the time when they will meet to decide upon the application. An affidavit that such service made upon a person by service upon her daughter at her residence, it not appearing that the mother was absent, does not satisfy the statute.
    ■4. Same — Commissioners cannot substantially deviate from route pro-poked.
    R seems that the commissioners have no power to deviate considerably from the route proposed by the applicant and described in the certificate of the jury.
    Certiorari directed to the commissioners of highways of the town of Owego, Tioga county, N. Y., to review an order made by ■said commissioners January 14, 1889, laying out- a highway in said town on the application of John F. Holden, through the lands owned and occupied by John Scrafford, Sarah Scrafford, Mary A. Scrafford and others. November 24, 1888, John F. Holden presented 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 summons the jurors.so drawn. It appears affirmatively that no notices were posted stating the time and ¡ilace of • the meeting of the jury; nor was any notice given to the owners and occupants 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 southwest 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 given 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.
    
      G. A. & H. A. Clark, for relators; D. T. Easton, for commissioners.
   Hardin, P. J.

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 § 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: * * • *

Subd. 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 § 84, 1 R. S., 7th Ed., 1246, only authorizes a review of the merits involved in the order. People ex rel. Hubbard v. Harris, 63 N. Y., 391. In the opinion delivered in the case just cited, the case of People ex rel. Flint 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 The People ex rel. D. & H. C. Co. v. Parker, 12 N. Y. State Rep., 448, 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, chap. 269, as to illegal assessments; but nothing in the case aids the contention of the defendants here.

(2) . Section 59, 2 R. S., 7th Ed., 1239, 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 freeholders 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 § 59 of the Eevised Statutes. The petitioner or applicant for the road gave no notice of the time and place of drawing the jury to the commissioners or to the land owners; nor was any notice posted as required by § 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 § 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, N. Y., with the exception of one addressed to Eugene Eerguson, at Elemingville, N. Y. The postoffice address of some of the land owmers is Gaskill Corners, Tioga county, N. Y.

Section 62 of the Eevised Statutes, page 1241, 7th Ed., 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 occupant 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 E. 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, N. 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 § 62.

(3) . 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 November, 1888. While it is not needful 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 their power. People ex rel. Wilkinson v. Carman, 14 N. Y. State Rep., 543. 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 jurors whose names were drawn; such objections being allowed.” The return also states that he “madean 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 ex rel. Johnson v. President, etc., Village of Whitney's Point, 32 Hun, 508; S. C., affirmed, 102 N. Y., 81; 2 N. Y. State Rep., 1.

(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 ex rel. Lawrence v. Schell, 5 Lans., 352.

The writ as to Fraser should be quashed, with ten dollars costs. The order of the commissioners of highways is annulled, with fifty dollars costs and disbursements. Section 2143 of the Code of Civil Procedure.

Martin, J., concurs; Merwin, L, concurs in the result  