
    In re HIGHWAY AT TAPPAN.
    (Supreme Court, General Term, Second Department.
    December 10, 1894.)
    Highways—Pboceeding to Establish.
    An order oí the county judge confirming the report oí commissioners that the highway is necessary will be confirmed where there was no irregularity in the proceeding, and the record shows that the highway was necessary, that the damages awarded to the contestants were sufficient, and that more than three-fourths of the property through which the proposed road would pass had been dedicated by the owners.
    Proceeding to lav out a highway at Tappan, in the town of Orangetown, Rockland county. An order was made in accordance with petition, and petitioners now move for confirmation thereof.
    Granted.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    A. & A. X. Fallon (Frank Comisky, of counsel), for petitioners.
    F. H. Ernst, for German Masonic Temple Ass’n.
   DYKMAN, J.

This is an application under section 90, c. 568, of the Laws of 1890, for an order confirming an order of the county court of Rockland county to lay out a highway at Tappan, in the town of Orangetown, in that county. On the 6th day of June, 1893, the petitioners applied to the commissioners of highways of the town of Orangetown to lay out the highway mentioned in the petition set out in the record before us. Before 30 days thereafter, the petitioners, by duly-verified petition, applied to the county court for an order appointing three commissioners to determine upon the necessity of such highway, and, in case they found such highway necessary, to assess the damages by reason of the laying out thereof. The county court appointed the commissioners, who made and took the oath of office required by law. Due notice was given of the time and place of meeting. The commission was attended by the parties interested and by the commissioners of highways of the town of Orangetown. They personally examined the highway proposed to be laid out, and they were attended by representatives of the German Masonic Home, the respondents in this proceeding, who appeared personally and by counsel, and took testimony, and reduced the same to writing, on the question of damages. The commissioners then reported to the court that the highway should be laid out, but the county court declined to confirm the report, holding that, under the strict construction of the statute, the commissioners should first certify that the highway was necessary. The county judge therefore sent the matter back for a further hearing before the same commissioners, who appointed a time and place of hearing, and both questions, that of necessity of the highway and damages to the German Masonic Temple Association, were fully litigated. The commissioners then made a unanimous report to the court, finding that the highway was necessary, and fixing the damages to the German Masonic Temple Association. The commissioners of highways of the town of Orangetown certified to the county court that, in their opinion, the highway was necessary. On such certificate and proofs, the county judge made an order bearing date April 30, 1894, laying out such highway. That order is, under the section above quoted, now presented to this court for confirmation. There is no irregularity in the proceedings, and our examination of the record satisfies us that the public highway in question was necessary, and that the damages awarded to the contestants were sufficient. More than three-fourths of the property through which the proposed road will pass has either been dedicated to the town for such purposes, or the owners waive their claims for damages, and consent to its construction. It is already constructed by private subscription for three-fourths of its entire length. The road, as laid out, avoids two dangerous railroad crossings at grade, which in all cases is very desirable. The order applied for should be granted. All concur.  