
    In the Matter of the Application of Lewis Thomson, Respondent, to Lay out a Public Highway in the Town of Warrensburgh, Warren County, N. Y., and the Assessment of Damages Therefor. Town of Warrensburgh and Others, Appellants.
    
      A notice of motion to confirm, etc., a decision of commissioners to lay out highways must be served before, but the motion day may be made after, thirty days from the filing of the decision.
    
    Under section 89 of the Highway Law, which provides that within thirty days after the filing of the decision of the commissioners appointed in a proceeding to lay out a highway, any interested party may apply to the court, if in session, or to the county judge appointing the commissioners, for an order confirming, vacating or modifying their decision, service, within thirty days after the filing of the decision, of notice of a motion to modify, confirm or vacate the decision, is sufficient, although the motion is not returnable until after the expiration of such thirty days.
    . Appeal by the Town of Warrensburgh and others from an order of the County Court of Warren county, entered in the office of the clerk of the county of Warren on the 16th day of March, 1903, denying the appellants’ motion to vacate and set aside the decision of commissioners appointed herein and denying said appellants’ request that said motion be heard upon its merits.
    
      John H. ■Qwrvrvmgham, for the appellants.
    
      J. A. Kellogg, for the respondent.
   HoUGHTOUj J.:

The appellants were 'owners of lands through which, by proceedings under the statute, it was sought to lay out a highway.' Commissioners were appointed by the County Court and made' tlieir decision laying out the highway through appellants7 lands, and: assessing damages therefor, which report was filed in the town, clerk’s office of the-town of Warrensburgh on the 26th day of January, 1903. On the 23d day of February, 1903, being within thirty-days from the filing of said report, the appellants served .upon all. adverse parties notice of a motion to vacate and set aside the decision of the commissioners, returnable before the Warren County-Court on the 9th day of March, 1903. On the coming on of said motion before the County Court, the preliminary objection was' made that the motion should have been made returnable within the. thirty days from the date of the filing of the decision of the commissioners, prescribed by section 89 of the Highway Law, and that service of a notice within the thirty days for hearing on a day beyond the period was ineffectual and did not entitle the appellants to be-heard upon the. merits. The court sustained this preliminary objection and refused to allow the appellants to be heard upon the merits..

We think that the learned county judge erred in.refusing to hear-the motion upon the merits, and that the order must be reversed.

Section 89 of the Highway Law provides that withm thirty days-after the decision of the commissioners shall have been filed in tlietown clerk’s office, any party interested in the proceeding may apply to the court if in session, or to the county judge appointing-the commissioners, for an order confirming, vacating or modifying-their decision ; and that if. no such motion is made the decision of' the commissioners shall be final. The section further provides that such motion shall be brought on upon the service of. papers upon, adverse parties in the proceeding, according to the usual: practice of the court in actions and special proceedings pending therein.

It is too narrow an interpretation of these provisions to hold that the motion upon the decision of thé commissioners must be brought, on for hearing within the thirty days. A party aggrieved by the-determination of the commissioners, or one interested in procuring the confirmation of the report, might be deprived of his right to move to vacate or to confirm, if the rule were otherwise. The application can be made to the court if in session. In rural counties terms of the County Court are not frequent, and it might easily occur that, no appointed term would fall within the thirty days so as to allow proper service of the notice of motion. If a party were required to make his. notice returnable within the thirty days, he might by reason of sickness or absence of the county judge be unable to obtain from him the designation of a day for which he could notice, and would thereby be wholly deprived of any hearing in the matter. Service of the notice to confirm or vacate within the thirty days from the filing of the decision returnable on a day beyond the period is clearly sufficient.

If any authority is needed, however, for the construction which we think should be placed upon the section, it is found in Matter of Glenside Woolen Mills (92 Hun, 188), where it is expressly held that a notice of motion within the thirty days returnable beyond that period is good and entitles the moving party to be heard upon the merits.

The respondent urges that such a construction might unreasonably delay the laying out of a highway for the notice might be made returnable many months in the future. It is a sufficient answer to this criticism that the County Court would have the matter in control, and by order to show cause could undoubtedly compel a hearing within a reasonable time. In the present proceeding, however, no such situation appears, for, so far as is disclosed, the motion was made returnable at the first term of the County Court appointed to be held after the giving of the notice.

Upon the denial of the appellants’ motion and refusal to hear it because not made in time, the County Court granted an order confirming the decision of the commissioners as to laying out a portion of said highway through .a cultivated garden; and at the March term of this court the highway commissioner moved, under section 90 of the Highway Law, that this court confirm such order. of the County Court. That motion has been held in abeyance until the hearing and determination of the present appeal.

The reversal of the order appealed from makes it proper to deny this motion for confirmation of the last order of the County Court at the present time, and to direct that the same be vacated and set aside to the end that the County Court may hear the main motion. of appellants upon the merits and in case the same shall be decided against appellants’ contention the commissioner of highways may then apply to the County Court and this court for such order without prejudice..

The order appealed from is reversed, with ten dollars, costs and disbursements, and the proceeding is remitted to the Warren County Court for the hearing of appellants’ motion upon the merits; and the motion of Shepard F.. Smith, commissioner of highways of the town of Warrensburgh, to affirm the order of confirmation of the County Court, as to that portion of the highway running through cultivated gardens, is denied, without costs, and the same is vacated and set aside, without prejudice to renewal in cáse the report of the commissioners laying out said highway shall be finally confirmed by the County Court.

All concurred.

Order reversed, with ten dollars costs and disbursements, and the proceeding remitted to Warren County Court for hearing upon the-merits. The motion, of Shepard F. Smith, commissioner of highways of the town of Warrensburgh, to affirm the order of confirmation of the County Court as to that portion of the highway running through cultivated gardens, denied, without costs, and the same vacated and set aside without prejudice to renewal in case report of commissioners shall be finally confirmed by the County Court.  