
    Ward Buckley, individually and as executor, appellant, v. Wm. A. Drake and others, commissioners, respondents.
    
      Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Highways—Who competent as juror on application to open highway—Laws 1881, chapter 696.
    Laws of 1881, chapter 696, directs the town clerk, when there is an application to open a highway, to “ deposit in a box the names of all persons then resident of his town whose names are on the list as" jurors, who a/re not interested in fhe lands,” etc. Held, that one who signed the application for the road is a competent juror; that the legislature did not intend to cover those who signed the application for the road by the phrase “interested in the lands.1'
    2. Practice—How to review proceedings—When by certiorari—When
    BY WRIT OP REVIEW.
    If there was an error it would have been reviewable by certiorari. When there is a remedy, and proof of facts are necessary, it is by certiorari on appeal. When the case requires no proof of facts outside of the return, the remedy for an error is to be brought by a writ of review of the case itself.
    
      T. J. & J. W. Lyon, for appellant, Buckley.
    
      C. E. Cuddeback, for respondents, Drake et al.
    
   Barnard, P. J.

There was no error in the drawing of the jury. The application to open the highway was signed by a great many persons,' and the jury was drawn under legal form. The statute directs how the jury is to be formed, and this way was explicitly followed.

The town clerk is directed to “deposit in a box the names of all persons then residents of his town whose names are on the list as jurors, who are not interested in the lands,” “nor of kin to the owner.” The disqualification is of those who are interested in the lands, and of persons of kin to the owner. Chapter 696, Laws of 1881.

Under the phrase, “ interested in the land,” the legislature could not have intended to cover those who signed the application for a road through it. An applicant for a highway is no more interested in the land than a freeholder who is in favor of the road and has not signed the application.

Such a juror would undoubtedly be proper. If an absolutely impartial jury was designed, the law would have provided some way for a challenge to review those jurors who had formed an opinion. The old way of obtaining a certificate permitted an applicant, by a notice, to call everybody to view his proposed road, and if he could get twelve to sign the certificate the road went before the commissioners of highways for then action. In 1871 the legislature changed this mode by requiring a certificate fora jury, drawn (twelve in number) from the town jury list, except those interested in the land and related to the owner, and it required nine of this number to sign the certificate. Ten signed the certificate in question, but one of them was one of the 159 persons who signed the application. Under the precise requirement of the law he was a capable juryman. If there was an error it would have been reviewable by certiorari. The application and the certificate would necessarily have been returned, and it would have appeared by the return that one of the applicants was a drawn juror, and one who sat upon the proceedings. When there is a remedy it is by certiorari on appeal. When the case requires no proof of facts outside of the return, the remedy for an error is to be brought by a writ of review of the case itself.

On both grounds, therefore; the judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concur.  