
    David Baylis et al., Commissioners, etc., App’lts, v. Scudder Jayne, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    Highway—Obstruction—Verdict of jury conclusive.
    Where in an action for the recovery of a statutory penalty for the obstruction of a public highway, the testimony at the trial was contradictory, and was all submitted to the jury upon a charge to which there was no , exception, and by which the jury was requested to find whether the obstruction complained of was within the limits of the highway: Held, that their verdict will not be disturbed.
    Appeal from a judgment entered on the verdict of a. jury and from an order denying a motion for a new trial on the minutes.
    
      Thomas J. Ritch, Jr., for app’lts; Wilmot M. Smith, for resp’t.
   Dykman, J.

—The plaintiffs are commissioners of highways of the town of Brookhaven, in county, and. this action is prosecuted for the recovery of a statutory-penalty for the obstruction of a public highway in that town. The specific obstruction charged against the defendant is the maintainance of a fence beyond his boundary line, and within the limits of the highway which passes, through his land.

The cause was tried at the circuit before a jury and a verdict was rendered in favor of the defendant, and the plaintiff has appealed from the judgment and order denying the motion for a new trial on the minutes of the court.

The road described in the complaint was laid out by the ■commissioners of highways of the town of Brookhaven in the year 1728 under the following description: “Laid out a a highway from towne to ye old man’s, the lower rode begining between ye lande of William Healme’s and Matthias Jeanes’ house, and so runeing as it is staked and marked crocked in some places for ye avoyding hills to ye Drowne meddow 4 pole wid and so over ye Drowne med•dow as it is layd oute to Moses Burnit, and so a longe downe the hollow to Jonathan Norton’s house and from thence up by ye mill along Ohristall Brook hollow to Win•coum.”

The place designated in this description as Drowne Meddow is now named Port Jefferson, and the places designated as Towne and the Old Mans are now called Setanket .and Mount Sinai respectively.

In May, 1862, the commissioners of highways ascertained .and described the road and made a new record, and in May, 1882, repeated the process and ascertained the location of the road, as they believed, on both occasions.

And yet it is difficult to justify such location. The obscurity of the description and the uncertainty of the monuments in the original order for laying out the road, in •connection with the lapse of years, and the devastation and 'Changes incident thereto render it impossible to ascertain the location of the old road with any degree of certainty.

The testimony on the part of the plaintiffs was too unsatisfactory and inconclusive to require a verdict in their "favor, and the testimony introduced by the defendant went far to show a different location for the old road.

So the testimony was contradictory, and it was all submitted to the jury by a charge to which there was no exception, and by which the jury was required to find whether the fence of the defendant was within the limits •of the highway.

Under that charge so given, the jury rendered a verdict for the defendant, and so failed to locate the fence of the defendant within the highway, and under the testimony it is difficult to see how any other conclusion could have been reached.

We find no error in the reception and exclusion of evidence of which the plaintiff complains, and the judgment .and order appealed from should be affirmed, with costs.

All concur.  