
    People ex rel. William B. Ashley, App’lt, v. The Commissioners of Highways of the Town of East Fishkill, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Highways—When commissioners of highways may refuse to lay out-road.
    Where after due formalities a jury certified to the necessity of a certain road, which certificate was duly served and filed’ Held, that the court will not compel the commissioners of highways by mandamus to follow the certificate and lay out the proposed road where, if laid out and opened, the road would be beneficial to the relator alone and not to the general public.
    Appeal from an order of a special term held in Dutchess county denying the application of the relator for a writ of mandamus to issue to the commissioners of highways commanding them to lay out a certain highway in the town of East Fishkill.
    
      Herrick & Losey, for app’lt; O. D. M. Baker, for resp’t commissioners; W. O. Anthony, for resp’t R. R. Co.
   Dykman, J.

The dwelling house and out buildings of the relator are located on the northerly side of a public highway, in the town of East Fishkill, and about three hundred and seventy-five feet therefrom. Access to his residence from that highway is now obtained by him by means of a private way across the land of another private owner, and the land of the New England Railroad Company. His way is laid across the railroad, at grade, and also across a natural stream of water, about fifteen feet in width. It is two rods wide, and gates are maintained upon it on each side of the track of the railroad.

In the month of January, 1886, proceedings were instituted by the relator to procure a public highway, two rods wide, from his residence to the old road, and all the steps and measures required by the law were taken for that purpose, and the jury certified to the necessity of the improvement, and delivered the certificate of the jury to. the commissioners of highways of the town, and they forthwith filed it with the town clerk. The relator thereupon released all claim for damages to result from the improvement, and agreed to fence the road and indemnify the town against all damages, and all expenses of litigation.

Still the highway commissioners refused to lay out the road, and the relator applied to the special term for a peremptory writ of mandamus, which should command them to do so, and his motion was denied, and he appealed from, the order of denial.

, From the foregoing statement it is plainly seen that the commissioners of highways are subserving the interest of their town by refusing to follow the certificate of the jury and lay out the proposed highway. If laid out and opened it would be beneficial to the relator alone, and not to the general public, and the burden of its construction and maintenance would be imposed upon the town for the accomodation of one person.

It is true the relator has executed a personal undertaking to defray the expenses of the improvement, but the validity of the instrument is quite doubtful, and in our view it should be allowed no influence.

The highway, if constructed, would be substantially for a private purpose, to furnish the relator with an unobstructed way from his house to the road, and in our view the compulsory power of this court should not be exerted for the accomplishment of that object.

Our conclusion therefore is, that the public interests and the purposes of justice will be best subserved by withholding the writ.

This view renders further examination of the questions involved unnecessary, and we think the order should be affirmed with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.  