
    People ex rel. Charles Lentz et al., App’lts, v. Solomon Gray, Commissioner of Highways, et al., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 24, 1888.)
    
    1. Highways—Proceedings to assess damages for laying out new highways—Re-assessment—Notice necessary—Laws 1847. chap. 455.
    In proceeding to re-assess the damages occasioned by the laying out of a new highway, it is necessary to give the parties interested in such reassessment notice of each and every step taken.
    3. Same—Proceedings void where no notice given.
    In a case where the parties asking such re-assessment were given notice-of the drawing of the jury by the town clerk, but no notice of any proceedings thereafter, Meld, that the proceedings could not stand.
    This is a proceeding by certiorari to review all the proceedings, records, verdict, findings and judgments had by the above named defendants and respondents, or either of them, in the reassessing of damages occasioned by the laying out of a new highway across and through the lands of the above named relators in the town of Ephratah, Fulton county. On the 22d day of October, 1887, the sole commissioner of highways of said town, due proceedings having been had therefor prior thereto, made an order laying out said new highway across the lands of said relators, which order was regularly filed and entered of record in the office of the town clerk of said town. Thereafter, on the application of such sole commissioner of highways, Henry. S. Persse, Alexander Denmark and Dewitt 0. Leek were duly apappointed commissioners to assess the damages of relators by the county court of Fulton county They duly qualified, and from time to time met, and thereafter and on the 26th day of April, 1888, made and signed their report, assessing the damages of relators, which report was on the 29th day of May, 1888, filed in the office of the clerk of said town.
    Solomon Gray, sole commissioner of highways of said town, feeling aggrieved with such assessments of damages, thereafter caused to be served on the relators and also on the town clerk of the town of Caroga, an adjacent town, notice in writing asking for a jury to reassess the damages of relators, and appointing the town clerk’s office in the town of Caroga, and the 16th day of June, 1888, at ten 'o’clock a. m., as the place and time for the drawing of such jury.
    At the time and place last aforesaid a jury was drawn by said town clerk of the town of Caroga, and a certificate thereof made and delivered to said commissioner of highways, who delivered the same to the respondent, Henry V. Berry, justice of the peace of said town of Ephratah. On the 16th day of June, 1888, said defendant, Henry V. Berry, justice, etc., issued a summons, naming the jurors so certified, to Zachariah Empie, a constable of said town of Ephratah, commanding him to summons such jurors to meet at thq hotel of Henry Quackenbush, in the town of Ephratah, on the 23d day of June, 1888, at ten o’clock A. m., to form a jury to re-assess the damages occasioned 'by the laying out of the said highway, which said summons was returned personally served. On the 23d day of June, 1888, the jury met, and six of them re-assessed such damages, made, rendered and signed a verdict which was ■certified by said justice, and thereafter filed in the office of the clerk of said town of Ephratah. By such re-assessment the damages of said relators were considerably xeduced.
    No notice of any of the proceedings, after the drawing of the jury by the town clerk of the town of Garoga, was ever given by any person to the relators, or either of them, -and such re-assessment, verdict and proceedings were had without the knowledge or consent of relators, or either of them.
    
      Philip Keck, for app’lt; R. P. Anibal, for resp’t.
   Per Curiam.

Chapter 455, Laws 1847, and amendments, show the manner of assessing damages in these ■cases.

After the jury has been drawn then, by section 6, they are to hear the parties, and such witnesses as may be ■offered by the parties, and sworn by said justice before them.'

Although nothing is said expressly about notice to the parties, such notice is necessary on sound and settled principles. Without due notice the proceedings cannot stand.

This is the decision in People ex rel. Stephens v. Tallman (36 Barb., 222), and we think that decision correct. The respondents ask for an order authorizing the calling of a a new jury. We do not feel certain that we have that power. Whether the proceedings have entirely failed or not we will not now determine. It is enough for the present that we reverse the proceedings, with fifty dollars costs and debts against the highway commissioner.  