
    THE PEOPLE ex rel. SAMUEL TOMPKINS v. WILLIAM LANDRETH and others, Commissioners of Highways of the Town of Niagara, and others.
    
      Commissioners of highways— Certiorari to review proceedings of—when quashed— Bight of one whose land is taken, to act as commissioner 3 assess damages.
    
    Where nearly two years had elapsed since the filing of an order of the commissioners of highways laying out a road, and where the report of the commissioners appointed to assess the damages of those whose lands were taken had been filed, and such damages had been assessed upon the town and paid over to the commissioners of highways,—held, that the court would, in its discretion, quash a certiorari, issued to review such order.
    
      Semble, that a commissioner of highways is not disqualified, because he owns lands, over which he unites with other commissioners in laying out a road.
    Certiorari to review proceedings of the commissioners of highways, of the town of Niagara, in the county of Niagara, and of the commissioners for assessing damages for the laying out the same.
    Two applications were made to the commissioners of said town, to lay out a road. . On the 25th March, 1872, the said commissioners made an order, laying out said road, and the order was filed in the town clerk’s office, on the same day. The commissioners applied to the County Court, for the appointment of commissioners, to assess the damages of the owners of the land taken for said highway. Commissioners were appointed for that purpose, on the 10th day of March, 1873. On the 12th August, 1873, said commissioners, after hearing the parties in interest, made and filed their award of the damages of the several owners. On the 2d January, 1874, the said commissioners filed in the town clerk’s office, what they call an amended appraisal, made necessary, as they claim, by reason of one of the persons, to whom damages were awarded, having died before the first appraisal was made, and the land, on account of which the damages were assessed, belonged to the heir-at-law of such deceased person. The commissioners of highways further return, that the supervisors assessed said damages on the town of Niagara, in the fall of 1873, and directed the same to he paid to the commissioners of highways, and that the said moneys have been collected and paid over, accordingly.
    
      Piper & Porter, for the relator.
    
      3. N. Griffith, for the defendants.
   Mullin, P. J.:

The relator seeks to review, not only the proceedings of the commissioners to assess damages, but also, those of the commissioners of highways, in laying out the road. The order laying out the road was recorded and filed in March, 1872. Nearly two years had elapsed from the filing of the order, before the writ was applied for, a delay which, under the circumstances of this case, makes it proper for us to quash the writ.

A party ought not to lie by, and impose upon the town the expense of appraising, assessing and collecting damages, and then attempt by certiorari, to annul the proceedings in laying out the road. He should have applied for the writ promptly, or, what was the most appropriate remedy, he should have appealed from the order laying out the road. For these reasons, the writ should be quashed, so far as relates to laying out the road.

As to the assessment of damages, laches are not imputable to the relator, but his objections to them are sq technical, as to be almost frivolous. The only one worthy of consideration, is, that one of the commissioners of highways, who applied for the assessment of damages, was himself one of those, whose lands had been taken for the road. My recollection is, that this General Term has ruled that a commissioner of highways is not disqualified, because he owns lands, over which he unites with other commissioners in laying out a highway. Commissioners of highways, like assessors, must act in matters in which they have a pecuniary interest. Hoads must be laid out, and taxes must be assessed; and the injustice that may be done, must be borne, or roads cease to be laid out and taxes assessed. The law permits towns to elect one highway commissioner. If the public interest demands a highway laid out over his land, how is it to be done, if he cannot act ? The statute makes no provision for substituting any other oificer or person in his place. If, however, we are' wrong in this, still, it is in our discretion, whether we will grant the relief sought by this writ; and we think mischief, instead of good, would result from setting aside the proceeding of either set of commissioners.

The writ of certiorari is quashed, with costs to be paid by the relator.

Writ quashed, with costs to be paid by the relator.  