
    Jospeh Engleman, Resp’t, v. Adolph Longhorst et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed May 2, 1890.)
    
    1. Highways—Alteration oe—Failure to post copy of order on door OF TOWN HOUSE.
    When the commissioner of highways in proceedings to alter a highway delivers the order to the town clerk his duty is discharged, and the failure of the clerk to post a copy on the door of the house where the town meeting is usually held does not render the.order absolutely void or justify resort to force, such as throwing down fences and entering upon the old road, to nullify its provisions.
    2. Same—1 R. S„ 515, § 64.
    Neither is the order void by reason of the failure of a property owner, over whose premises both the old and the altered roads run and on whose petition it is altered, to execute and file a consent and a release of all claims to damages pursuant to 1 R. S., 515, § 64.
    Appeal from a judgment of the general term of the third judicial department, entered on a verdict subject to the opinion of the general term.
    
      John F. Anderson,for resp’t; T. F. Bush, for app’lts.
    
      
       Affirming 6 N. Y. State Rep., 322.
    
   Follbtt, Oh. J.

Prior to September 26, 1883, a highway-known as the “ Old Cochocton Boad ” extended from a highway south of plaintiff’s farm, northerly through it to a point west of and near to his dwelling; thence the center line thereof extended north 34 degrees east 5 chains and 50 links ; thence north 24 degrees east 4 chains and 50 links to a highway known as the “ Narrowsburg Boad; ” thence across the last mentioned highway and beyond in a northerly direction. On the date mentioned, the commissioner of highways, on the written petition and consent of the plaintiff, by a written order duly signed, altered the course of that part of the old Oochocton road extending from the plaintiff’s house to the Narrowsburg road, so that its center line ran north 57 degrees 30 minutes west 6 chains and 40 links to the Narrowsburg road entering it a few rods southwesterly of the junction of the two roads before the alteration. The change was wholly on the land of the plaintiff.

October 15, 1883, the petition, consent and order were duly filed and recorded in the office of the clerk of the town. Thus far the proceedings were strictly in accordance with the statutes made and provided for such cases, 1 R. S., 501, § 1; 513, §§ 54 and 55, except the defendants assert that the proceedings were defective because of the failure of the plaintiff to execute and file a release of all claims to damages pursuant to 1 R. S., 515, § 64, which question will be hereinafter considered. Between. October 15 and December 1, 1883, the plaintiff opened the new road to the public and fenced up the old one, and thereafter these defendants and the public travelled over the altered highway until August 13, 1884, when defendants, pursuant to a preconceived plan, entered on the land formerly used for the old road and tore down the plaintiff’s fences, for which act they were sued in trespass. Before this date the defendants had heard that the commissioner had altered the highway, but neither had seen the order. This action of trespass was brought to recover damages sustained by the plaintiff by reason of the acts of. the defendants. The defendants interposed as defenses (L), that the highway was not legally altered because the town clerk failed to post a copy of the order altering it on the door of the house where the town r meeting of the town was usually held; (2) because the plaintiff did not, in writing, release all claim to damages by reason of the alteration, pursuant to § 64, 1 E. S., 515 ; (3) because the order did not recite that the plaintiff had consented to the alteration and released his claim to damages.

It appears that for several months before the defendants committed the alleged trespass they knew that the line of the highway had been changed, had travelled over the new part and had heard that the commissioner had made the alteration which they saw. They testified that they had been frequently at the house where the town meeting of the town was usually held, but saw no copy of the commissioner’s order posted on the door of the house. No person testified that a copy of the order was not posted, and the town clerk was not called. When the commissioner delivered the order to the town clerk his duty was discharged, and the failure of the clerk to post a copy, if he did fail, did not render the order absolutely void and justify the defendants in resorting to force to nullify its provisions.

It is not asserted that the plaintiff or the commissioner had any part in the failure of the clerk, if he did fail, or that either acted in bad faith. Neither is the order void by reason of the failure of the plaintiff to execute and file a release of all claims to damages pursuant to IRS., 515, § 64. The plaintiff petitioned for and consented to the alteration, which was wholly upon his farm, and he personally closed the part of the road which was] abandoned, opened and worked the new part. Under these facts, the general term well held that the lack of a formal release did not render the order void, and it follows that the absence of the release not invalidating the order, that the failure to recite in it that the damages had been released would not have that effect. Whether this order might or might not have been set aside for the asserted irregularities by some proceeding other than by appeal, we are not called upon to consider. But we are of the opinion that it was sufficient to protect the plaintiff’s property from invasion by persons having no rights except those common to the public.

The judgment should be affirmed with costs.

All concur.  