
    In the Matter of the Application of Alice E. Fenn, an Infant, Individually and by Catherine D. Fenn, Her Guardian ad Litem, Respondent, to Lay Out a Highway in the Town of Putnam, and the Assessment of Damages Therefor. George Smith and Others, Appellants.
    Third Department,
    September 17, 1908.
    Highways — curing defective undertaking — necessity of highway and compensation of landowner — decision of County Court conclusive.
    Where the undertaking accompanying an application for the appointment of commissioners in a proceeding to lay out a highway is defective in fixing the liability of the sureties at too small a sum, the County Court, under the authority given by section 730 of the Code cf Civil Procedure, may allow a .proper undertaking to be substituted, and when filed the, defect is cured.By virtue of section 89 of the Highway Law, the decision of the County Court as to the necessity of a proposed highway and the compensation of landowners made upon an application to confirm the decision of the commissioners, is final and conclusive.
    Appeal by George Smith and others from, an order of the County Court of Washington county, entered in the office of the Clerk of said county on the 31st day of October, 1907, confirming the report of commissioners appointed in the proceeding to lay out a highway and denying a motion to vacate their decision.
    
      
      J. A. Kellogg, for the appellants.
    
      Fred A. Bratt, for the respondent.
   Per Curiam :

The proceeding for laying out the highway seems to have been conducted in substantial compliance with the provisions of the Highway Law (Laws of 1890, chap. 568), as amended, except that the undertaking which accompanied the application for the appointment of commissioners was defective, in that it provided that the liability of the sureties should not exceed the sum of fifty dollars, instead of one hundred dollars, as required by chapter 67 of the Laws of 1906. Notwithstanding an undertaking in conformity with the requirements of this statute was necessary to entitle the respondent to take the proceeding, we think the County Court had power to allow an undertaking to be substituted for the defective one under section 730 of the Code of Civil Procedure, and that the defect was cured by the filing of an undertaking which met all of the requirements of this amendment of the Highway Law. The section is very broad and comprehensive, and applies to special proceedings as well as to actions.

As to the necessity of the proposed highway and the compensation of the landowners, it is only necessary to say that section 89 of the Highway Law has made the decision of the County Court _ upon an application to confirm the decision of the commissioners final and conclusive upon those questions. (Matter of Mitchell, 85 App. Div. 277; Matter of De Camp, 151 N. Y. 557.)

We think that the order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with costs. 
      
       See § 82 at seq., as amd.— [Rep.
     