
    (57 Misc. Rep. 555.)
    In re RUSHMORE.
    (Orange County Court.
    January, 1908.)
    Highways—Discontinuance—Application.
    Where a person applies for the discontinuance of a highway, he need only set forth such facts as are required by Highway Law, Laws 1890, p. 1193, c. 56S, § 83, and need not allege that the part of the highway to be discontinued is useless.
    In the matter of the application of Charles E. Rushmore to discontinue a portion of a highway and assessment of damages therefor. Motion to dismiss proceedings denied.
    Rushmore, Rogers & Stern and Charles E. Rushmore, for petitioner.
    J. W. & Percy V. D. Gott, for landowners.
    Alfred B. Crandell and John G. Earl, for Richard M. Cunningham.
    Graham Witschief, for George Uamereau.
   SEEGER, J.

The petitioner institutes this proceeding for the purpose of procuring the discontinuance of a portion of a highway in the town of Woodbury, Orange county, N. Y., and asks for the appointment of commissioners to determine upon the uselessness of that portion of the highway proposed to be discontinued and to assess the damages, if any there be, occasioned by such discontinuance. The landowners, Richard M. Cunningham, Alfred B. Crandell, and John G. Earl, were served with notice of the application and appeared specially for the purpose of moving to dismiss the proceedings upon the following grounds: First, the court has no statutory jurisdiction to grant the relief asked for in the notice of motion; second, the notice of motion fails to ask for the only relief given under the statute; third, thei description of the portion of a highway sought to be discontinued is fatally indefinite; fourth, no presumptive or prima facie case of uselessness is made out in the moving papers. I think the notice is a sufficient compliance with the statute and that the description of the portion of the highway sought to be discontinued is sufficient.

As to the fourth point, I can find nothing in the statute which requires the petitioner to allege that the highway proposed to be discontinued is useless. The statute specifies what the petition shall contain as follows:

“Whenever the land Is not dedicated to the town for highway purposes, and not released as herein provided, the applicant shall, within thirty days alter the presenting of the application to the commissioners of highways, and after at least five days’ notice to said commissioners of the time and place of the application to the county judge or special county judge, in this section provided for, by verified petition showing the applicant’s right to so present the same, and that such application has been in good faith presented * * * for the appointment of three commissioners to determine upon the * * * uselessness of the highway proposed to be discontinued and to assess the damages by reason of the * * * discontinuing such highway.” Highway Law, Laws 1890, p. 1193, c. 568, § 83.

The language used in the statute, “showing the applicant’s right to so present the same,” refers to the requirements of section 82 of the highway law, which provides that “any person or corporation assessable for highway labor may make written application to the commissioners of highways in the town in which he or it shall reside or is assessable, to alter or discontinue a highway or to lay out a new highway,” and cannot be construed to require the petitioner to set forth in his petition any facts not required by said section 83. Matter of Buel, 168 N. Y. 426, 61 N. E. 700.

The. motion to dismiss the proceedings should be denied, and an order appointing commissioners granted.

Ordered accordingly.  