
    In the Matter of the Amended Petition of Maynard B. Makely, Appellant, for an Order Pursuant to Article 78 of the Civil Practice Act, Requiring the Board of Supervisors of Albany County, Respondent, to Secure Certain Lands, Rights and/or Easements from the Petitioner by Purchase, or in the Alternative to Acquire the Same by Condemnation.
   Petitioner has appealed from an order of the Albany Special Term of the Supreme Court dismissing his petition as a matter of law on the ground that it fails to state a cause of action. The proceeding was instituted [in the nature of mandamus] to compel the board of supervisors of Albany county to secure certain lands and easements by purchase pursuant to the provisions of the Highway Law or, in the alternative, to condemn the same. The amended petition alleges the jurisdictional facts and then asserts that petitioner’s land has been taken by the county of Albany for State highway purposes without his consent, without compensation and without due process of law. The answer denies the material allegations of the petition. Questions of fact are raised which present triable issues. The county in its brief refers to an original proceeding instituted for the same purpose and asserts that petitioner consented that the court pass upon the application as a matter of law. No such defense is asserted in the county’s answer and the court may not consider matters which are only referred to in the county’s brief. Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and the matter is remitted to the Albany Special Term for trial. Hill, P. J., Bliss, Hefflernan and Foster, JJ., concur; Sehenck, J., dissents.  