
    Jedediah Briggs, Appellant, v. Henry M. Bowen, Respondent.
    (Submitted April 1, 1875;
    decided April 20, 1875.)
    In an action of trespass for breaking plaintiff’s close, defendant answered that the locus in quo was a public highway. Plaintiff proved" an order of the commissioner of highways discontinuing that portion of the highway. Defendant proved that after the commission of the alleged trespass the proceedings of the commissioner were reversed by the Supreme Court. Held, that the judgment of the Supreme Court established that the proceedings of the commissioner were illegal from the beginning, and so conferred no right upon the plaintiff to inclose the premises; that said judgment was conclusive until reversed, and could not be questioned collaterally; and that it was not necessary for defendant to plead said judgment.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendant, entered upon the report of a referee.
    This was an action of trespass quare clausum fregit.
    
    The complaint alleged that defendant broke and entered plaintiff’s close in the"town of Boonville, Oneida county, tore down fences, etc. The answer alleged that the locus in quo was a public highway, and that the alleged acts of trespass "were in removing obstructions placed thereon by plaintiff. Plaintiff gave in evidence' proceedings and an order of the commissioner of highways of said town, discontinuing that portion of the highway over plaintiff’s premises. Thereupon plaintiff inclosed the land. Defendant tore down the fence and crossed upon that portion of the highway thus attempted to be discontinued. The defendant proved that the proceedings of the commissioner were reversed by the General Term of the Supreme Court upon certiorari. Further facts appear in the opinion.
    
      Fisk & Ballou for the appellant.
    The commissioner of highways had jurisdiction and power to make the alteration in the highway without the intervention of a jury. (Garretson v. Clark, Lalor’s Sup., 162; People v. McNeil, 2 S. C. R., 140 ; Thomp. on Highways, 180 ; Gould v. Glass, 19 Barb., 179; Marble v. Whitney, 28 N. Y., 297.) The order of the referees was not a bar to the subsequent order of the commissioner. (Laws of 1847, chap. 455, § 9, p. 584; 4 Seld., 482; 23 N. Y., 365; 41 id., 174; Davie v. Van Wie, 1 S. C. R., 530; Spooner v. Lefevre, 2 id., 666; Benton v. Wickwire, 54 N. Y., 226-228; Johnson v. Openheim, 55 id., 280-289; 11 id., 601; Squire's Case, 12 Abb., 38; Pruyn v. Graham, 1 Wend., 376; People v. Nichols, 51 N. Y., 470.) The finding of the referee that a certiorari was sued out to review the determination of the commissioner and that such determination was afterward reversed does not affect the ease. (Field v. Mayor, 6 N. Y., 179-189; Merill v. Green, 55 id., 270-274; Ferguson v. Ferguson, 2 id., 360, 361; Kelsey v. Western, id., 500, 506; N. Y. C. Ins. Co. v. Wat. Pro. Ins. Co. v. Wat. Pro. Ins. Co., 20 Barb., 468; Malcom v. Fagan, 1 S. C. R., 93, 95.)
    
      C. D. Adams for the respondent.
    The locus in quo was a public highway at the time of the trespass. (2 N. Y. S. C., 360.) The decision on appeal from commissioner’s report must remain unaltered for the term of four years from the time of filing it. (2 R. S. [5th ed.], 404, § 128 [Laws of 1847, chap. 455, § 9] ; 18 How., 70.)
   Rapallo, J.

The claim of the plaintiff to recover in this action depends wholly upon the validity of the order of the commissioner of highways of the town of Boonville, made in October, 1872, discontinuing that part of the old highway, upon which the alleged trespasses were committed. Unless that portion of the highway had been legally discontinued, the plaintiff had no right to inclose it, and the defendant was justified in removing the obstructions which the plaintiff had placed there.

It appears from the findings of the referee, that the proceedings of the commissioner of highways were reviewed on certiorari by the Supreme Court, and were reversed by that court in December, 1873. • This reversal was after the commission of the alleged trespasses, but it establishes that the proceedings of the commissioner of highways in discontinuing the road were illegal and of no effect from the beginning, and conferred upon the plaintiff no right to inclose the premises in question. The judgment of the Supreme Court, so long as it remains unreversed, is conclusive upon that point, and its correctness cannot be questioned collaterally. It is therefore needless to express any opinion upon the question whether the fact that four years had not elapsed since the determination of the same matter by referees, on appeal from the order made in 1871, rendered the proceedings in 1872 void.

The appellant contends that the defendant cannot avail himself of the judgment of reversal of those proceedings, for the reason that he has not pleaded it. There was no occasion for pleading it. The proceedings were not alleged in the complaint. The plaintiff alleged that the defendant broke his close, to which the defendant answered that the locus in quo was a public highway. It appeared that it had been a public highway for nearly forty years. The plaintiff relied upon the proceedings of the commissioner, to prove his title by showing that the highway had been discontinued. The defendant had the right to meet this claim by showing that the proceedings relied upon by the plaintiff had been reversed. Furthermore, it does not appear that the point was taken at the trial that this proof was not admissible under the pleadings, and that is of itself a sufficient ground for not entertaining it here.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  