
    In the Matter of the Application of Spencer Trask and Kate N. Trask, Respondents, for the Appointment of Commissioners to Determine the Uselessness of a Highway in the Town of Saratoga Springs, and to Assess the Damages Therefor in Case it Shall Be Determined that Such Highway Is Useless. John M. Eddy, Appellant.
    
      Commissioner to determine as to the uselessness of a highway—he- must he a free, holder at the time of his appointment—appointment vacated on motion.
    
    Under section 84 of the Highway Law (Laws of 1890, chap. 568) which requires that the commissioners appointed to determine as to the uselessness of a highway shall he disinterested freeholders, such commissioners must he freeholders at the time of their appointment.
    
      The appointment of a commissioner, who was not a freeholder at the time of big. appointment, is not made valid by the fact that he subsequently, before the. hearing, becomes a freeholder, and his appointment will be vacated upon. motion.
    Appeal by John M. Eddy, a party to the above proceeding, from, so much of an order of the Supreme Court, made at. the Fulton Special Term and entered in the office of the clerk of the county of Saratoga on the 29th day of December, 1902, as denies the appellant’s application to remove Frank Jones, a commissioner appointed,' in the above-entitled proceeding, and to appoint another person in his place and stead.
    
      John L. Henning, for the appellant.
    
      Edgar T. Brackett, for the respondents.
   Lyon, J.:

The provisions of section 84 of the Highway Law (Laws of 1890, chap. 568) require that the three commissioners appointed to-determine as to the uselessness of a highway shall be disinterested freeholders.

It must be regarded as established by the papers presented to the. court upon this appeal that Frank Jones was not a freeholder at tlia time of his appointment as commissioner on October eighteenth, but that intermediate that date and the hearing of the application to vacate, his appointment on November twenty-first, he became a freeholder. The statutory requirement is that persons appointed be freeholders, at the time of their appointment. Later becoming a freeholder does, not validate the appointment of the commissioner. (People v. Purdy, 154 N. Y. 439.)

The appointment of a person not a freeholder will be vacated upon motion when that fact is made to appear. (Matter of Beehler,, 3 N. Y. St. Repr. 486; appd., Matter of Baker, 173 N. Y. 249.)

Furthermore, we think that in view of the affidavits before the. Special Term as to the possible interest of the appointee, and without any reflection upon him, the application should have been granted. It is essential that a commissioner be able, without liability of embarrassment to himself, to act with entire freedom in the-performance of his duties as such commissioner.

We think the court erred in deuying the application to vacate the. áppoinment of Frank Jones, and to appoint another person in his stead as commissioner.

Order, so far as it' denied application to vacate appointment of Frank Jones, reversed, with costs, and motion to vacate such' appointment granted, with costs.

All concurred.

Order, so far as it denies application to vacate the appointment of Frank Jones as a commissioner, reversed, with ten dollars costs and ■disbursements, and motion to vacate said appointment granted, with ten dollars costs.  