
    BENAJAH TODD, Plaintiff, v. DYER TODD, Defendant.
    
      Motion for nonsuit—effect of when followed ly verdict directed for plaintiff—Commissioners of highways—delegation of a/wlhority to sign order laying out highwa/y — Estoppel. .
    When the defendant at the close of the. whole evidence makes an unavailing ■motion for a nonsuit, which is followed by a direction from the court to find a verdict for the plaintiff, and no request is made by the defendant to submit any question of fact to the jury, the defendant is held to have admitted that only questions of law are involved. If the defendant does not move for a nonsuit or verdict, and judgment is directed for the plaintiff, the rule is otherwise.
    One commissioner of highways cannot, while the survey is incomplete, give authority to his associate commissioner to sign his name to the order laying out the road in his absence, and when the survey shall be completed. Whether, had he remained, his name could have been signed by another in his presence and by his direction, qumre.
    
    A recital in an instrument of release of damages arising from laying out a highway, that such highway had been laid-out by three commissioners, does not estop one who signed it mistakingly, supposing that such commissioners would act lawfully, in an action brought by him for trespass upon the locus in quo, in which action the opposite party, by his own proof, shows that such recital is false.
    Motion for a new trial, on exceptions ordered to he heard in the first instance at the General Term. The action was brought for alleged trespass upon lands of the plaintiff. The defendant set up as a defense, that the locus in quo was a public highway, laid out and opened by the commissioners of highways, and released to the public or town, and that it had been dedicated to the public by the plaintiff.
    
      A. Schoonmalcer, Jr., for the plaintiff.
    
      Wm. Lounsbery, for the defendant.
   Land on, J.:

The defendant attempted to show that the locus in quo was a public highway. If so, his acts constituting the alleged trespass, were lawfully done; otherwise, not. He claimed that the commissioners of highways had, the previous year, duly laid out, pursuant to statute, a public highway through the lands of the plaintiff, embracing the locus in quo. At the close of the testimony the defendant moved for a nonsuit, which was denied. The court then directed a verdict for the plaintiff. Exceptions to the ruling of the court were taken by the defendant, but no request was made to submit any question of fact to the jury. The authorities are to the effect, that when the defendant, at the close of the whole evidence, makes an unavailing motion for a nonsuit, which is followed by a direction from the court to find a verdict for the plaintiff, and no request is made by the defendant to submit any question of fact to the jury, the defendant shall be held to have admitted that questions of law, only, were involved, If the defendant does not move for a nonsuit or verdict,- and judgment is directed for the plaintiff!, the rule is otherwise, It follows, therefore, that if the facts proved will admit of a finding sustaining the direction made by the court, the defendant is concluded by it. This view would be fatal to the defendant’s case, for the evidence would undoubtedly support a finding that no order in the form prescribed by the statute was made. But stating the case in the strongest possible aspect for the defendant, and we have these facts: Upon a written application of the plaintiff to lay out a public highway through his own and lands of others, the three commissioners of highways of the town of Hardenbergh, duly met to consider the application ; they determined to lay out the highway, and orally expressed that determination; they employed a surveyor who proceeded to make a survey of the proposed road; and two of the commissioners were present during the first day of the survey. The survey occupied two days. At the close of the first day, Todd, one of the commissioners, told Commissioner Scudder to sign his name to the order laying out the road, and to any other necessary papers. Commissioner Todd then left, and did not return. The survey was completed the following day. An order was drawn, referring to the survey, and purporting to lay out the highway therein described. Commissioner Scudder signed his own name to the order, and in pursuance of the direction given by Commissioner Todd, signed his name" also. The third commissioner never signed the order, and was not present when it was signed by Commissioner Scudder. The order was never recorded, and was probably lost by the commissioner who signed it. The application and survey were recorded with the town clerk.

The learned judge, at circuit, held the order void, and that the absent commissioner could not delegate his official duty and power to his associate. We think he was right. The absent commis- • sioner could not act by proxy. The statute says, if the commissioners “shall determine to lay out such highway, they shall .make out and subscribe a certificate of such determination.” Two could perform this duty, the whole having been notified to attend, It was a personal trust, involving judgment and discretion. Had the absent commissioner remained until the order was drawn, his name, perhaps, might have been signed to it by another, in his presence and by his direction ; but when he gave the direction to his associate to sign for him, the survey was incomplete, and the order not drawn. He performed part of a joint duty, and then abandoned it to be finished by his associate. The law contemplates that the commissioner who was present and did sign the order, should give to the trust reposed in him his best judgment and discretion. He could give these for himself only, and certainly none, for his associate. To sustain this order is to countenance a lax performance of official duty, unsafe in its tendencies, and, we think, not only unsupported by authority, but in conflict with it.

But it is urged that the plaintiff is estopped from denying that the highway was legally laid out, because, upon the same date that the commissioner signed the order, the plaintiff, with others, signed a paper reciting that a highway had been laid out by three commissioners, and releasing damages on account of laying out the same. This paper, standing alone, is wholly insufficient to establish, as against the plaintiff, that the particular highway was laid out, and recourse is made by the defendant to the order above referred to. That order, as shown above, is void. Sow, as by the defendant’s own proof, the fact appears that the recital is false, the plaintiff is not estopped by the recital from availing himself of the truth, as the defendant shows it to be. Besides, the paper was manifestly signed in the expectation that the commissioners would lawfully lay out the road. As they laid out none, it is difficult to see how the plaintiff is estopped by mistakenly supposing they would, The plaintiff should have judgment upon the verdict.

Present — Bocees, P. J., Countryman and Landon, JJ.

Hew trial denied, and judgment ordered for the plaintiff, with costs. 
      
       1 R. S., 514; § 63.
     
      
       Barnes v. Perine, 2 Kern., 18; Winchell v. Hicks. 18 N. Y., 558; O’Heill v. James, 43 id., 85.
     
      
       Stone v. Flower, 47 N. Y., 566; Frecking v. Rolland, 53 id., 422, 424.
     
      
      1 R. S., 514, § 63.
     
      
      
         1 R. S., 485, § 125.
     
      
      
         Reno v. Pinder, 20 N. Y., 298.
     
      
       Powell v. Tuttle, 3 Comst,, 396; Olmsted v. Elder, 1 Seld., 144; The People v. Smith, 45 N. Y., 772; The People v. Williams, 36 id., 441.
     
      
       Sinclair v. Jackson, 8 Cow., 543, 587; Warren v. Leland, 3 Barb., 613.
     
      
       Matter of Sharp, 1 N. Y. S. C. Rep., 427; aff’d, Court of Appeals.
     