
    THE COMMISSIONERS OF HIGHWAYS OF THE TOWN OF JAMAICA, Respondents, v. HENRY A. VAN ALLEN, Appellant.
    
      Sighway — enwoachmeni upon it — certificate of a jury, summoned, under section 105 of 1 JRevised Statutes, 522 — question as to whether an appeal lies therefrom to the County Court — Code of Civil Procedure, see. 3044.
    Appeal from a judgment of the County Court of Queens county, reversing a judgment and setting aside a certificate of a jury in proceedings brought by the commissioners of highways of the town of Jamaica to compel the appellant to remove an alleged encroachment upon a highway in that- town.
    The court at General Term said: “ There is some doubt whether this proceeding was appealable to the Oounty Court. The commissioners claimed that there was an encroachment made or continued by defendant upon a highway in the town of Jamaica, and a failure •to remove the same after order and notice. By the provision of 1 Revised Statutes (522, § 105) the commissioners applied to a justice of the peace for a precept to summon a jury. The jury found no encroachment, and made a certificate to that effect, in which they certified the damage to defendant sustained by him by such proceedings.’ Section 108 provides that those damages, ‘ together with ■the costs thereof, shall be paid by the commissioners, and shall be a charge in their favor against the town.’ There is no provision for any entry of judgment or for its collection. The proceeding is •special. The justice issues the precept for the jury and swears them and the witnesses, and then his duty seems to end. (Pugsley v. Anderson, 3 Wend., 468.) The case seems to resemble cases of reassessment of damages in opening roads. The justice causes a jury to be summoned, and they fix the,damages. The damages so fixed are not collected by the judgment of the^ justice but by force of the certificate and the law under which it is made. Section 3044 of the Code, providing for appeals from justices’ judgments, does not seem to be broad enough to cover such a case. The County Court assigns two errors for reversal. The judgment is against the evidence and the damages are unproven. * * * The jury certified the defendant’s damages at twenty-five dollars. It is manifest that the damages intended to be certified by the jury relate wholly to the vexation and trouble, including legal expenses incurred in the defense of a baseless claim. The jury had the proceedings; knew of the contest- upon the trial. A number of witnesses were sworn. Counsel were present conducting the investigation for the parties. The jury make the inquest; they are to be aided by witnesses if produced by the parties, and not otherwise. The damage is to be found in the same way. The amount found is reasonable and proper, and the judgment of the County Court should be reversed, with costs, and the certificate of the jury stand in full force.”
    
      W. J. Stamford, for the appellant.
    
      John Fleming, for the respondents.
   Opinion by

Pbatt, J.;

opinion by Barnard, P. J., for full, reversal.

Present — BabNabd, P. J., Dyxman and Pbatt, J.

Order of County Court reversed and that of justice affirmed, except as to part reversing the twenty-five dollars damages found, by the jury.  