
    JOSEPH PRATT, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    
      Pwpresíw'e — order laying out highway — reeoi'd of, how invpeached — The survey — must be incorporated into the order.
    
    The plaintiff in error was indicted in tbe Jefferson county Oyer and Terminer for unlawfully obstructing a public highway, or street, in the Tillage of Carthage in said county. Having been convicted, and sentenced in the Court of Sessions, to which the indictment was sent, he sued out a writ of error and removed the record into this court.
    The highway in question commenced' in the margin of Furnace street, in said village, near the terminus of Water street, and after crossing a pond that separated an island in the Black river on which a saw-mill, now owned by the plaintiff in error, and a grist and sawmill of one Gnyot stood, from the main land it extended to a point near the grist-mill of said G-uyot; a bridge was constructed by the commissioner of highways of the town of Wilna, in which said village of Carthage is located, over said pond.
    The plaintiff in error erected an office and barn within the limits of the said highway and piled logs and lumber therein, and these constituted the obstructions in the highway for which the indictment was found.
    To prove that the locus in quo was a public highway the district attorney proved that in August, 1858, Sanford Lewis, Wm. D. Levis and Charles Sarvoy were commissioners of highways of the town of Wilna, and that a paper produced had been taken from the office of tbe town clerk of said town and that the signatures to said paper were in the handwriting of said commissioners.
    The paper thus produced is marked as filed February 1, 1859, in the handwriting of the then town clerk of said town. The following is a copy of the contents of said paper, viz.:
    “A survey of a road or street from Furnace street to G-uyots & Davis Mills, beginning at a hub on the northerly margin of Furnace St. 25 links easterly from the point where the easterly margin of Water street intersects with the northerly margin of Furnace street, thence in a direct line towards the S. Ely corner of Guyot’s gristmill N. 45^ west 2 chs 21 Iks to a hub 57 Iks S. 45J E. from said S. Ely corner of said grist-mill as surveyed by A. Brown, August 30th, 1858.
    The above street is to be three rods wide.
    (Signed.) SANFORD LEWIS,
    WM. D. LEYIS,
    CHARLES SARYOY,
    
      Commissioners of Hiqhwa/ysP
    
    The signatures are not on the same paper as the survey, but upon a piece of somewhat different color and of inferior quality and annexed to the survey by three wafers.
    Upon the trial two of the commissioners were called and gave evidence tending to show that they had never signed the paper when attached to the survey, and had never authorized it to be so attached, and that no meeting had ever been called to lay out the highway, and that in fact it never had been laid out. Plaintiff’s counsel claimed that their testimony in connection with the appearance of the paper was sufficient to impeach it as a record, and that there was, therefore, no evidence to show that the loous in quo was a public highway. The trial court held the paper sufficient to show that the highway had been laid out.
    The court at General Term said: “Assuming that the paper found on the files of the town clerk was presumptive evidence of the laying out of the highway in question, it was but presumptive evidence and it was competent for-any person interested to prove that it was not legally laid out and thus overcome the presumption.
    First. The appearance of the paper was some evidence against its genuineness. Tbe names of tbe commissioners were signed, not upon tbe same paper on wbicb tbe survey was written, altbongb there was ample room on tbe back of it for tbe names of tbe commissioners. Tbe paper on wbicb tbe names were written was of a somewhat different color from that on wbicb tbe survey was written, and was of an inferior quality and was annexed to tbe survey with wafers.
    Second. One of tbe commissioners swears positively that be never saw or beard of tbe survey until tbe day before tbe trial of tbe plaintiff in error upon tbe indictment, and'that, although bis signature to tbe paper is genuine, be never signed it connected with tbe survey, and never attended a meeting of tbe commissioners when an order for laying out tbe highway was made.
    Another of tbe commissioners cannot swear positively that be did not sign tbe paper when annexed to tbe survey, but has no recollection of ever signing it, and bis recollection is that he did not. Tbe third commissioner was not sworn, and we do not know what bis recollection in regard to signing it is. But upon the evidence given on tbe trial it seems to me that tbe presumption is entirely overcome, and tbe finding of tbe jury that tbe paper relied upon was an order laying out tbe highway was without evidence to support it.
    Tbe only question remaining to be considered is whether tbe paper, Exhibit A, was a valid order for laying out tbe road.
    If I am right in bolding that tbe verdict finding the exhibit to have been properly made and filed was not only not supported by tbe evidence but against it, tbe invalidity of tbe order is conclusively established. But if I am wrong in this I am of opinion that it is invalid as not being made in compliance with section 70, 2 Revised Statutes(5th ed.), 394, wbicb section is in tbe words following, viz.:
    ‘ Whenever tbe commissioners of highways shall lay out, alter or discontinue any road, either upon application to them or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them and to be filed and recorded in tbe office of tbe town clerk, who shall note tbe time of recording tbe same.’
    Tbe survey was not incorporated in an order signed by tbe commissioners, and hence tbe requirement of tbe statute has never been complied with. Tbe proper protection of tbe public as well as of tbe owners or occupants of tbe land over wbicb a highway is laid out requires that tbe commissionérs should clearly designate tbe route of tbe road, its width and tbe determination that the road be laid out. Tbe legislature, therefore, required a survey and an order signed by the commissioners, and that it be bled and made a matter of record so as to enable those interested to establish tbe existence of tbe road by tbe highest evidence tbe subject-matter was capable of being established by. If tbe order might be omitted so might tbe survey, and thus tbe public left to ascertain the existence of tbe road by tbe evidence of persons cognizant of the action of tbe commissioners in reference to tbe road. I entertain no doubt but that tbe omission to incorporate tbe survey in an order was fatal to tbe laying out of tbe road.
    
      We have been referred to tbe case of Tucker v. BamJcvn, (15 Barb., 471) in wbicb it was held that a survey of a road signed by tbe commissioners was a valid order laying out tbe road. Tbe case arose in tbe seventh judicial district, and tbe appeal was beard and decided in tbe General Term of tbe district. One of tbe judges sitting in tbe General Term dissented from tbe conclusion at wbicb tbe majority arrived as to tbe validity of tbe order, together with other questions. Tbe dissenting opinion of JohN-soN, J., is, to my mind, conclusive against tbe validity of tbe order. Tbe decision of tbe case operates as a virtual judicial repeal of tbe most important clause of tbe section cited, and is not only mischievous in its effects upon tbe public but fatal to tbe action of tbe public authorities in their efforts to lay out and protect tbe roads of their towns and tbe streets of their villages and cities. Although I entertain the most profound respect for tbe learning and ability of tbe judges who decided tbe case cited, I cannot concur with them in tbe conclusion at wbicb they arrived and am constrained to disregard it.
    AlleN, J., when sitting in tbe General Term in tbe fifth district in -the case of Stewart v. Wallis (30 Barb., 348), referring to one of the propositions decided in Tucker v. Bcmkin, says ‘ the reasons for the judgment in the former case {Fitch v. Comrs. of Fwklcmd, 22 "Wend., 132) are more satisfactory to me than those of the able judge pronouncing the opinion of the court in the latter (Tucker v. Rankin), and, therefore, I prefer to follow the first decision.’
    Porter, J., in The People v. Williams (36 N. Y., M3), referring to the case of Tucker v. Rankin, says the decision is in conflict with previous and subsequent adjudications of the court in which it was pronounced, and it has since been substantially overruled in this court.
    There are other cases in which the rulings in Tucker v. Rankin have been repudiated, but not upon the specific point now under consideration. It seems to me that the case cannot be considered as binding authority upon any of the questions considered by the majority of the judges.
    The conviction should be reversed, and as an order laying out the road cannot now be supplied the prisoner should be discharged.”
    
      Stephen R. Pratt, for the plaintiff in error. Watson M. Rogers, for the defendant in error.
   Opinion by

Mullin, P. J.;

Talcott and Smith, JJ., concurred on the ground that the record of the highway was impeached.

Conviction reversed and proceedings remitted to General Sessions of Jefferson county with directions for a new trial.  