
    People ex rel. Lentz et al. v. Gray, Highway Commissioner, et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    September 24, 1888.)
    Highways—Established by Statutory Proceedings—Notice.
    Under Laws N. Y. 1847, c. 455, and amendments, prescribing the manner of assessing damages arising from the laying out of roads by the highway commissioner, viz., that a jury be drawn, the parties be beard, witnesses examined, etc., all the proceedings are void, unless due notice thereof be given to the parties, although such notice is not expressly required by the act.
    
      Certiorari to county court, Fulton county.
    Chapter 455, Laws 1847, and amendments, prescribe the manner of assessing damages arising from the laying out of roads by the highway commissioner.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Philip Keck, for appellant. R. P. Anibal, for respondent.
   Learned, P. J.

Chapter 455, Laws 1847, and amendments, show the manner of assessing damages in these cases. After the jury has been drawn, then, by section 6, they are to “hear the parties, and such witnesses as may be offered by the parties, and sworn by said justice before them.” Although nothing is said expressly about notice to the parties, such notice is necessary on sound and settled principles. Without due notice, the proceedings cannot stand. This is the decision in Stephens v. Tallman, 36 Barb. 222, and we think that decision correct. The respondents ask for an order authorizing the calling of a new jury. We do not feel certain that we have that power. Whether the proceedings have entirely failed or not we will not now determine. It is enough for the present that we reverse the proceedings, with $50 costs and debts against the highway commissioner.

Landon and Ingalls, JJ., concur.  