
    The People on the relation of James Elliott vs. The Commissioners of Highways of Greenbush.
    Where application is made to commissioners of highways for the laying out of a private road, it is their duty to summon the required number of free-holders to view the land, and not to delegate the authority to another.
    Where, however, freeholders were summoned by a constable, in compliance with a precept issued by the commissioners, who when assembled were requested by the commissioners to act, and acted accordingly, the court refused to quash the proceedings, it appearing that the party through whose land the road was laid was present and did not object to the proceeding.
    Common law certiorari. By the return it appeared that John HallenbaJee, on the 6th December, 1836, applied to the commissioners of highways of the' town of Greenbush, to lay out a private road, which for a part of the distance would pass over the lands of the applicant, and for the residue of the distance over the lands of the relator. The relator had due notice of the application, and of the proceedings thereon. The commissioners on the same day issued *a warrant or summons, directed and de- [ *368 ] livered to one of the constables of the town, reciting the application and requiring him to summon twelve disinterested freeholders of the town, and not of lcin to the applicant or the relator, to meet, at a specified place, on the 15th day of the same month, to certify on oath to the necessity and propriety of the road applied for. At the specified time and place the constable returned that he had summoned twelve freeholders, giving their names—the freeholders appeared, and were requested by the commissioners to serve as a jury upon the application—they were duly sworn, and after having viewed, &e. they certified in due form that it was necessary and proper to lay out the road. The relator was present, and made no objection to either of the freeholders, nor to the mode of summoning them. The commissioners thereupon proceeded, and laid out the road.
    
      S. Dutcher & I. Harris, for the relator,
    insisted that the commissioners exceeded their authority in issuing process to a constable to summon the freeholders ; that they should themselves have summoned, or at least designated the freeholders ; and that in consequence of this irregularity the proceedings were void, and the commissioners had no jurisdiction to lay out the road.
    
      S. Cheever, contra.
   By the Court,

Bronson, J.

The statute provides, that whenever application shall be made to the commissioners of highways for a private road, they shall summon twelve disinterested freeholders of the town, to meet on a day certain ; of which day, notice shall be given to the owner or occupant of the land through which the road is proposed to be laid out. The freeholders, when met and sworn, are to view the land, and determine whether the road is necessary. 1 R. S. 517, § 77, 78. Although there does not seem to be any very good reason for requiring the commissioners themselves to summon the freeholders, instead of calling in the aid of some [ *369 ] officer who usually performs such services, *yeb the law is so written, and it must be obeyed. But there was, I think, a substantial compliance with the requirements of the statute. The freeholders were requested by the commissioners to serve as a jury upon the application. This was a sufficient summoning. Uhe statute does not require the commissioners to issue or have any process—it only requires them to summon the freeholders. The fact that the freeholders had assembled under void process, did not disqualify them for acting when they were afterwards legally requested to do so ; and by requesting them to act, the commissioners signified their approval of the freeholders as fully as they could have done in any other way. The relator had notice, was present, and made no objection. I think the road was well laid out.

Proceedings affirmed.  